Bill Text: AZ SB1341 | 2011 | Fiftieth Legislature 1st Regular | Engrossed
Bill Title: County planning; zoning; conforming legislation
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2011-04-14 - Governor Signed [SB1341 Detail]
Download: Arizona-2011-SB1341-Engrossed.html
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Senate Engrossed |
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State of Arizona Senate Fiftieth Legislature First Regular Session 2011
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SENATE BILL 1341 |
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AN ACT
amending section 11‑802, Arizona Revised Statutes, as added by laws 2010, chapter 244, section 7; amending section 11‑811, Arizona Revised Statutes, as added by laws 2010, chapter 244, section 7; amending sections 11‑814, 11‑815 and 11‑816, Arizona Revised Statutes; amending section 28-6713, Arizona Revised Statutes, as amended by Laws 2010, chapter 244, section 16; amending section 28‑8481, Arizona Revised Statutes, as amended by laws 2010, chapter 244, section 17; amending laws 2010, chapter 175, section 2; relating to county planning and zoning.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 11-802, Arizona Revised Statutes, as added by Laws 2010, chapter 244, section 7, is amended to read:
11-802. County planning and zoning commissions
A. The board of supervisors of a county, in order to conserve and promote the public health, safety, convenience and general welfare and pursuant to this chapter, shall plan and provide for the future growth and improvement of its area of jurisdiction, coordinate all public improvements pursuant to the plan, form a planning and zoning commission to consult with and advise it regarding matters of planning, zoning and subdivision platting and, in the manner provided in this chapter, adopt and enforce those rules, regulations, ordinances and plans as may apply to the development of its area of jurisdiction.
B. The commission shall act in an advisory capacity to the board and may or, if requested by the board, shall make a report or recommendation in connection with any matter relating to the development of the county under the jurisdiction of the board. The commission shall make those investigations, maps, reports and recommendations in connection with those investigations, maps and reports as seem desirable within the limits of the monies available.
C. In the counties having three supervisorial districts, each county planning and zoning commission shall consist of nine members who shall be qualified electors of the county. Three members shall be appointed from each supervisorial district by the supervisor from that district, and not more than one of the three may be a resident of an incorporated municipality. Members of the commission shall serve without compensation except for reasonable travel expenses.
D. Except as provided in subsection E of this section, in the counties having five supervisorial districts, each county planning and zoning commission shall consist of ten members who shall be qualified electors of the county. Two members shall be appointed from each supervisorial district by the supervisor from that district. Members shall be residents of the district from which they are appointed. Members of the commission shall serve without compensation except for reasonable travel expenses.
E. If any supervisorial district is at least ninety per cent Indian reservation and at least ninety per cent of the district is not subject to county zoning regulations, the supervisor from the district may appoint some or all of the members to the commission from any supervisorial district in the county if there is no appointee who is willing to serve within the supervisorial district. These appointments are subject to the limitations on residency required by subsections C and D of this section. Members appointed to the commission pursuant to this subsection require the approval of the board.
F. In counties with a population of less than one hundred seventy-nine thousand persons, an alternate member may be appointed by the appointing supervisor for each commission member appointed pursuant to subsections C, D and E of this section to serve in the absence of that member. Alternate members may be appointed from any supervisorial district in the county. During any meeting of the commission, if the regularly appointed member becomes available, the alternate member shall conclude any action on the agenda item under consideration and the regularly appointed member shall be seated for the remaining items.
G. The terms of the members of the commissions shall be for four years except for those initially appointed. Of those members initially appointed pursuant to subsection C of this section, five members shall be appointed to a two year term and four members shall be appointed to a four year term. Of those members initially appointed pursuant to subsection D of this section, five members shall be appointed to a two year term and five members shall be appointed to a four year term. Thereafter, each term shall be four years. If a vacancy occurs otherwise than by expiration of term, the vacancy shall be filled by appointment for the unexpired portion of the term. The board may remove members of the commission for cause.
H. On a conversion from three to five supervisorial districts pursuant to section 11‑212, the board of supervisors, on expiration of the terms of members of the commission serving on the date of the conversion, shall make those appointments to fill the vacancies to conform to subsection D of this section as soon as is practicable.
I. The county assessor, county engineer, county health officer and county attorney shall serve in an advisory capacity to the commission and to the boards of adjustment.
J. The commission shall:
1. Elect a chairperson from among its members for a term of one year and those other officers as it determines.
2. By resolution fix the time and place within the district of regular meetings, hold at least one regular meeting each month when there is new official business to transact and hold additional meetings as the chairperson or a majority of the commission deems necessary.
3. Adopt rules for the transaction of business and keep a record of its resolutions, transactions, findings and determinations, which record shall be a public record and be open to public inspection.
4. Transmit all of its recommendations, decisions, findings, reports and official actions, regardless of vote, to the board of supervisors.
K. A majority of the commission constitutes a quorum for the transaction of business and a majority vote of the quorum is required for any official action.
Sec. 2. Section 11-811, Arizona Revised Statutes, as added by Laws 2010, chapter 244, section 7, is amended to read:
11‑811. Zoning ordinance; zoning districts; definitions
A. Pursuant to this article, the board of supervisors may adopt a zoning ordinance in order to conserve and promote the public health, safety, convenience and general welfare. The zoning ordinance and all rezonings and zoning regulations amendments adopted under this article shall be consistent with and conform to the adopted comprehensive plan. In addition to the other matters that are required or authorized under this section and article 1 of this chapter, the zoning ordinance:
1. Shall show the zoning districts designated as appropriate for various classes of residential, business and industrial uses and shall provide for the establishment of setback lines and other plans providing for adequate light, air and parking facilities and for expediting traffic within the districts.
2. May establish the percentage of a lot or parcel that may be covered by buildings and the size of yards, courts and other open spaces.
3. Shall consider access to incident solar energy.
4. May provide for retirement community zoning districts.
5. May provide for the regulation and use of business licenses, adult oriented business manager permits and adult service provider permits in conjunction with the establishment or operation of adult oriented businesses and facilities, including adult arcades, adult bookstores or video stores, cabarets, adult live entertainment establishments, adult motion picture theaters, adult theaters, massage establishments and nude model studios. With respect to cabarets, the ordinance shall not conflict with specific statutory or valid regulatory requirements applicable to persons licensed to dispense alcoholic beverages, but the ordinance may include regulation of the age and conduct of erotic entertainers in a manner at least as restrictive as rules adopted under title 4. Notwithstanding section 11-812, a county in regulating or licensing businesses and facilities pursuant to this paragraph may impose reasonable operating requirements that affect the existing uses of businesses and facilities.
6. Shall designate and zone appropriate areas of reasonable size in which there may be established with reasonable permanency canneries, fertilizer plants, refineries, commercial feed lots, meat packing plants, tallow works and other like businesses. A dairy operation, including areas designated for the raising of replacement heifers or bulls owned by the same dairy operation, is not subject to this paragraph, and is a general agricultural purpose under subsection C, paragraph 2 of this section and section 11‑812, subsection A, paragraph 2. A replacement heifer or bull raising operation of a dairy that is not on contiguous property of the dairy is subject to this paragraph unless the operation begins within one‑quarter mile of the dairy.
B. To carry out the purposes of this article, the board may adopt overlay zoning districts and regulations applicable to particular buildings, structures and land within individual zones. For the purposes of this subsection, "overlay zoning district" means a special zoning district that includes regulations that modify regulations in another zoning district with which the overlay zoning district is combined. Overlay zoning districts and regulations shall be adopted pursuant to section 11-813. The provisions of overlay zoning shall apply retroactively to authorize overlay zoning districts and regulations adopted before April 20, 1993.
C. This section does not authorize:
1. The imposition of dedications, exactions, fees or other requirements that are not otherwise authorized by law.
2. The regulation or restriction of the use or occupation of land or improvements for railroad, mining, metallurgical, grazing or general agricultural purposes, if the tract concerned is five or more contiguous commercial acres.
D. For the purposes of this section:
1. "Adult arcade" means any place to which the public is permitted or invited and in which coin-operated or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image producing devices are maintained to show images involving specific sexual activities or specific anatomical areas to persons in booths or viewing rooms.
2. "Adult bookstore or video store" means a commercial establishment that offers for sale or rent any of the following as one of its principal business purposes:
(a) Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, videocassettes or reproductions or slides or other visual representations that depict or describe specific sexual activities or specific anatomical areas.
(b) Instruments, devices or paraphernalia that are designed for use in connection with specific sexual activities.
3. "Adult live entertainment establishment" means an establishment that features either:
(a) Persons who appear in a state of nudity.
(b) Live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities.
4. "Adult motion picture theater" means a commercial establishment in which for any form of consideration films, motion pictures, videocassettes, slides or other similar photographic reproductions that are characterized by the depiction or description of specific sexual activities or specific anatomical areas are predominantly shown.
5. "Adult oriented business" means adult arcades, adult bookstores or video stores, cabarets, adult live entertainment establishments, adult motion picture theaters, adult theaters, massage establishments that offer adult service or nude model studios.
6. "Adult oriented business manager" means a person on the premises of an adult oriented business who is authorized to exercise overall operational control of the business.
7. "Adult service" means dancing, serving food or beverages, modeling, posing, wrestling, singing, reading, talking, listening or other performances or activities conducted for any consideration in an adult oriented business by a person who is nude or seminude during all or part of the time that the person is providing the service.
8. "Adult service provider" or "erotic entertainer" means any natural person who provides an adult service.
9. "Adult theater" means a theater, concert hall, auditorium or similar commercial establishment that predominantly features persons who appear in a state of nudity or who engage in live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities.
10. "Cabaret" means an adult oriented business licensed to provide alcoholic beverages pursuant to title 4, chapter 2, article 1.
11. "Discernibly turgid state" means the state of being visibly swollen, bloated, inflated or distended.
12. "Massage establishment" means an establishment in which a person, firm, association or corporation engages in or permits massage activities, including any method of pressure on, friction against, stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating of external soft parts of the body with the hands or with the aid of any mechanical apparatus or electrical apparatus or appliance. This paragraph does not apply to:
(a) Physicians Persons who are licensed pursuant to title 32, chapter 7, 8, 13, 14 or 17.
(b) Registered nurses, licensed practical nurses or technicians who are acting under the supervision of a physician who is licensed pursuant to title 32, chapter 13 or 17.
(c) Registered nurse practitioners who are licensed pursuant to title 32, chapter 15.
(d) Persons who are employed or acting as trainers for a bona fide amateur, semiprofessional or professional athlete or athletic team.
(e) Persons who are licensed pursuant to title 32, chapter 3 or 5 if the activity is limited to the head, face or neck.
13. "Nude model studio" means a place in which a person who appears in a state of nudity or who displays specific anatomical areas is observed, sketched, drawn, painted, sculptured, photographed or otherwise depicted by other persons who pay money or other consideration. Nude model studio does not include a proprietary school that is licensed by this state, a college, community college or university that is supported entirely or in part by taxation, a private college or university that maintains and operates educational programs in which credits are transferable to a college, community college or university that is supported entirely or in part by taxation or a structure to which the following apply:
(a) A sign is not visible from the exterior of the structure and no other advertising appears indicating that a nude person is available for viewing.
(b) A student must enroll at least three days in advance of a class in order to participate.
(c) No more than one nude or seminude model is on the premises at any time.
14. "Nude", "nudity" or "state of nudity" means any of the following:
(a) The appearance of a human anus, genitals or a female breast below a point immediately above the top of the areola.
(b) A state of dress that fails to opaquely cover a human anus, genitals or a female breast below a point immediately above the top of the areola.
15. "Principal business purposes" means that a commercial establishment derives fifty per cent or more of its gross income from the sale or rental of items listed in paragraph 2 of this subsection.
16. "Seminude" means a state of dress in which clothing covers no more than the genitals, pubic region and female breast below a point immediately above the top of the areola, as well as portions of the body that are covered by supporting straps or devices.
17. "Specific anatomical areas" means any of the following:
(a) A human anus, genitals, the pubic region or a female breast below a point immediately above the top of the areola that is less than completely and opaquely covered.
(b) Male genitals in a discernibly turgid state even if completely and opaquely covered.
18. "Specific sexual activities" means any of the following:
(a) Human genitals in a state of sexual stimulation or arousal.
(b) Sex acts, normal or perverted, actual or simulated, including acts of human masturbation, sexual intercourse, oral copulation or sodomy.
(c) Fondling or other erotic touching of the human genitals, pubic region, buttocks, anus or female breast.
(d) Excretory functions as part of or in connection with any of the activities under subdivision (a), (b) or (c) of this paragraph.
Sec. 3. Section 11-814, Arizona Revised Statutes, is amended to read:
11‑814. Rezoning; conditional zoning change; notice; hearing; citizen review; definition
A. All rezonings adopted under this article shall be consistent with and conform to the adopted comprehensive plan. In the case of uncertainty in constructing or applying the conformity of any part of a proposed rezoning to the adopted comprehensive plan, the rezoning shall be construed in a manner that will further the implementation of, and not be contrary to, the goals, policies and applicable elements of the comprehensive plan. A rezoning conforms with the comprehensive plan if it proposes land uses, densities or intensities within the range of identified uses, densities and intensities of the comprehensive plan.
B. A property owner or authorized agent of a property owner desiring a rezoning shall file an application for the rezoning.
C. The commission, on its own motion, may propose a rezoning and, after holding a public hearing as required by this chapter, may transmit the proposal to the board, which shall proceed as prescribed in this chapter for any other rezoning.
D. On receipt of the application the board shall submit the application to the commission for a report. Before reporting to the board, the commission shall hold at least one public hearing after giving at least fifteen days' notice of the hearing by one publication in a newspaper of general circulation in the county seat and by posting of the area included in the proposed rezoning. If the matter to be considered applies to territory in a high noise or accident potential zone as defined in section 28-8461, the notice shall include a general statement that the matter applies to property located in the high noise or accident potential zone. The posting shall be in no less than two places with at least one notice for each quarter mile of frontage along perimeter public rights-of-way so that the notices are visible from the nearest public right-of-way. The commission shall also send notice by first class mail to each real property owner as shown on the last assessment of the property within three hundred feet of the proposed rezoning and each county and municipality that is contiguous to the area of the proposed rezoning. In proceedings involving rezoning of land that is located within territory in the vicinity of a military airport or ancillary military facility as defined in section 28‑8461, the commission shall send copies of the notice of public hearing by first class mail to the military airport. The notice sent by mail shall include, at a minimum, the date, time and place of the hearing on the proposed rezoning including a general explanation of the matter to be considered, and a general description of the area of the proposed rezoning. , for those counties with five or more supervisors, the notice must include a general description of how the real property owners within the zoning area may file approvals or protests of the proposed rezoning, and notification that if twenty per cent of the property owners by area and number within the zoning area file protests, an affirmative vote of three‑fourths of all members of the board will be required to approve the rezoning. In proceedings that are initiated by the commission involving rezoning, notice by first class mail shall be sent to each real property owner, as shown on the last assessment of the property, of the area to be rezoned and all property owners, as shown on the last assessment of the property, within three hundred feet of the property to be rezoned.
E. If the commission or hearing officer has held a public hearing, the board may adopt the recommendations of the commission or hearing officer through use of a consent calendar without holding a second public hearing if there is no objection, request for public hearing or other protest. If there is an objection, a request for public hearing or a protest, the board shall hold a public hearing at least fifteen days' notice of which shall be given by one publication in a newspaper of general circulation in the county seat and by posting the area included in the proposed rezoning. In counties with territory in the vicinity of a military airport or ancillary military facility as defined in section 28‑8461, the board shall hold a public hearing if, after notice is mailed to the military airport pursuant to subsection D of this section and before the public hearing, the military airport provides comments or analysis concerning the compatibility of the proposed rezoning with the high noise or accident potential generated by military airport or ancillary military facility operations that may have an adverse impact on public health and safety, and the board shall consider and analyze the comments or analysis before making a final determination. After holding the hearing the board may adopt the rezoning by a majority vote of the board for those counties with fewer than five supervisors, or for those counties with five or more supervisors if a protest has not been filed. , but If twenty per cent of the owners of property by area and number within the zoning area file a protest to the proposed rezoning, the change shall not be made except by a three‑fourths vote of all members of the board for those counties with five or more supervisors. If any members of the board are unable to vote on the question because of a conflict of interest, the required number of votes for the passage of the question is three-fourths of the remaining membership of the board for those counties with five or more supervisors, except that the required number of votes in no event shall be less than a majority of the full membership of the board. In calculating the owners by area, only that portion of a lot or parcel of record situated within three hundred feet of the property to be rezoned shall be included. In calculating the owners by number or area, county property and public rights-of-way shall not be included.
F. The board of supervisors shall adopt by ordinance a citizen review process that applies to all rezoning and specific zoning plan applications that require a public hearing. The citizen review process shall include at least the following requirements:
1. Adjacent landowners and other potentially affected citizens will be notified of the application.
2. The county will inform adjacent landowners and other potentially affected citizens of the substance of the proposed rezoning.
3. Adjacent landowners and other potentially affected citizens will be provided an opportunity to express any issues or concerns that they may have with the proposed rezoning before the public hearing.
G. The rezoning or subdivision plat of any unincorporated area completely surrounded by a city or town shall use as a guideline the adopted general plan and standards as prescribed in the subdivision and zoning ordinances of the city or town after April 10, 1986.
H. The board or commission, before taking any action on a rezoning or subdivision plat in an area as prescribed in subsection G of this section, may require the affected city or town to supply information to allow the county to meet the guideline. If an affected city or town objects to any such proposed action the board or commission shall prescribe in the minutes of the meeting specific reasons why in its opinion the guideline is actually being followed or why it is not practicable to follow the guideline of the general plan.
I. The board may approve a change of zone conditioned on a schedule for development of the specific use or uses for which rezoning is requested. If at the expiration of this period the property has not been improved for the use for which it was conditionally approved, the board after notification by certified mail to the owner and applicant who requested the rezoning shall schedule a public hearing to grant an extension, determine compliance with the schedule for development or cause the property to revert to its former zoning classification.
J. The legislature finds that a rezoning of land that changes the zoning classification of the land or that restricts the use or reduces the value of the land is a matter of statewide concern. Such a change in zoning that is initiated by the governing body or zoning body shall not be made without the express written consent of the property owner. In applying an open space element or a growth element of a comprehensive plan, a parcel of land shall not be rezoned for open space, recreation, conservation or agriculture unless the owner of the land consents to the rezoning in writing. For the purposes of this subsection, rezoning does not include the creation or expansion of overlay zones solely for the purpose of implementing airport safety and protection. Rezoning also does not include the redesignation of areas of the county to which the residential provisions of the county building codes apply or do not apply. The county shall not adopt any change in a zoning classification to circumvent the purpose of this subsection.
K. Notwithstanding title 19, chapter 1, article 4, a decision by the governing body involving rezoning of land that is not owned by the county and that changes the zoning classification of the land may not be enacted as an emergency measure and such a change shall not be effective for at least thirty days after final approval of the change in classification by the board. Unless a resident files a written objection with the board of supervisors, the rezoning may be enacted as an emergency measure that becomes effective immediately by a four-fifths majority vote of the board for those counties with five or more supervisors or a two-thirds majority vote of the board for those counties with less fewer than five supervisors.
L. For the purposes of this section, "zoning area" means the area within three hundred feet of the proposed amendment or change.
Sec. 4. Section 11-815, Arizona Revised Statutes, is amended to read:
11‑815. Enforcement; county zoning inspector; deputies; building permits; violations; classification; civil penalties; hearing officers and procedures
A. The county zoning ordinance shall provide for its enforcement within a zoned territory 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.
B. After the establishment and filling of the position, it is 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 and for that purpose the applicant shall provide the zoning inspector with a sketch of the proposed construction containing sufficient information for the enforcement of the zoning ordinance. A permit is not required for repairs or improvements of a value not exceeding five hundred dollars. Reasonable fees may be charged for the issuance of a permit. The inspector shall recognize the limitations placed on the inspector's authority by sections 11-804 and 11‑811, and shall issue the permit when it appears that the proposed erection, construction, reconstruction, alteration or use fully conforms to the zoning ordinance. In any other case the inspector shall withhold the permit.
C. It is unlawful to erect, construct, reconstruct, maintain or use any land in any zoning district in violation of any regulation or any provision of any ordinance pertaining thereto to the land and any violation constitutes a public nuisance. Any person, firm or corporation violating an ordinance, or any part of the an ordinance, is guilty of a class 2 misdemeanor. Each day during which the illegal erection, construction, reconstruction, alteration, maintenance or use continues is a separate offense.
D. A county may establish civil penalties for a violation of any zoning regulation or ordinance. Civil penalties shall not exceed the amount of the maximum fine for a class 2 misdemeanor. Each day of continuance of the violation constitutes a separate violation. If an alleged violator is served with a notice of violation pursuant to subsection E of this section, the alleged violator is not subject to a criminal charge arising out of the same facts.
E. A county that establishes a civil penalty for violation of a zoning regulation or ordinance may appoint hearing officers to hear and determine zoning violations. If the zoning inspector reports a zoning violation to the hearing officer, the hearing officer shall hold a hearing after serving notice of the hearing on the alleged violator. The notice shall be personally served on the alleged violator by the zoning inspector at least five days before the hearing. 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 on the alleged violator other than by personal service shall be served at least thirty days before the hearing.
F. At the hearing, the zoning inspector shall present evidence showing the existence of a zoning violation and the alleged violator or the alleged violator's attorney or other designated representative shall be given a reasonable opportunity to present evidence. The county attorney may present evidence on behalf of the zoning inspector. At the conclusion of the hearing, the hearing officer shall determine whether a zoning violation exists and, if a violation is found to exist, may impose civil penalties pursuant to subsection D of this section.
G. A hearing officer may be an employee of the county and shall be appointed by the board of supervisors. A review of decisions of the hearing officer by the board of supervisors shall be available to any party to the hearing. The board of supervisors may delegate this review to a county board of adjustment. If the board of supervisors elects to delegate this review, the board of supervisors shall delegate all requested reviews to the board of adjustment. The board of supervisors shall adopt written rules of procedure for the hearing and review of hearings, which shall be adopted in the same manner as zoning ordinances. Judicial review of the final decisions of the board of supervisors or a board of adjustment shall be pursuant to title 12, chapter 7, article 6. A county that establishes civil penalties for a violation of a zoning regulation or ordinance is not precluded from pursuing the remedies as provided for in subsection H of this section.
H. If any building or structure is or is proposed to be erected, constructed, reconstructed, altered, maintained or used or any land is or is proposed to be used in violation of this chapter or any ordinance, regulation or provision enacted or adopted by the board under the authority granted by this chapter, the board, the county attorney, the inspector or any adjacent or neighboring property owner who is specially damaged by the violation, in addition to the other remedies provided by law, may institute injunction, mandamus, abatement or any other appropriate action or proceedings to prevent or abate or remove the unlawful erection, construction, reconstruction, alteration, maintenance or use.
Sec. 5. Section 11-816, Arizona Revised Statutes, is amended to read:
11‑816. Boards of adjustment; powers; appeals
A. There shall be one or more boards of adjustment in each county. The board of supervisors may establish one board of adjustment that has jurisdiction countywide and that is composed of one member who is a resident of each supervisorial district or one board of adjustment in each supervisorial district that has jurisdiction in that supervisorial district and that is composed of not less than three nor more than five members, each, one of which shall be appointed in and shall have jurisdiction in each supervisorial district in which the zoning ordinance has been applied of whom is a resident of that supervisorial district. The members of each board shall be appointed for staggered terms of four years each. They shall be residents and taxpayers of the district from which they are appointed.
B. The board of adjustment may:
1. Interpret the zoning ordinance if the meaning of any word, phrase or section is in doubt, if there is dispute between the appellant and enforcing officer or if the location of a district boundary is in doubt.
2. Allow a variance from the terms of the ordinance if, owing to peculiar conditions, a strict interpretation would work an unnecessary hardship and if in granting the variance the general intent and purposes of the zoning ordinance will be preserved.
3. If authorized by the board of supervisors, review decisions by a hearing officer who hears and determines zoning violations pursuant to section 11‑815 and render a final decision. Subsections C and D of this section do not apply to this paragraph. Judicial review of the final decision by the board of adjustment shall be pursuant to title 12, chapter 7, article 6.
C. Appeals to a board of adjustment may be taken by any person who feels that there is error or doubt in the interpretation of the ordinance or that due to unusual circumstances attaching to the person's property an unnecessary hardship is being inflicted on the person. The appeal shall state whether it is a plea for an interpretation or a variance and the grounds for the appeal.
D. Any person aggrieved in any manner by an action of a board of adjustment may appeal within thirty days to the superior court, and the matter shall be heard de novo.
Sec. 6. Section 28-6713, Arizona Revised Statutes, as amended by Laws 2010, chapter 244, section 16, is amended to read:
28-6713. Bids for construction, reconstruction, equipment or supplies; procedure; bond; exceptions
A. Except as provided in subsection G of this section, in a county with a population of two hundred fifty thousand persons or more as determined by the most recent United States decennial census or the most recent special census as provided in section 28‑6532, bids for all items of construction or reconstruction involving an expenditure equal to or greater than the amount determined pursuant to subsection B of this section, all purchases or other acquisition of equipment involving an expenditure of more than five thousand dollars and all purchases of supplies and materials involving an expenditure of two thousand five hundred dollars or more shall be called for by advertising in a newspaper of general circulation in the county for two consecutive publications if it is a weekly newspaper, or for two publications of at least six but not more than ten days apart if it is a daily newspaper. The advertisement shall state specifically the character of the work to be done and the kind and quality of materials or supplies to be furnished.
B. Bids shall be called pursuant to subsection A of this section for all items of construction or reconstruction involving an expenditure of:
1. In fiscal year 1985‑1986, thirty‑five thousand dollars.
2. In fiscal year 1986‑1987 and each fiscal year thereafter, the amount provided in paragraph 1 of this subsection adjusted by the annual percentage change in the GDP price deflator as defined in section 41‑563.
C. If the board of supervisors receives a satisfactory bid, it shall contract with the lowest responsible bidder after the contractor or supplier gives any bond required by title 34, chapter 2, article 2, except that in counties with a population of more than one million persons according to the most recent United States decennial census, in determining the lowest responsible bidder under this section, the board may consider, for no more than five projects, the time of completion proposed by the bidder, the value over time of completed services and facilities and the value over time of interrupted services, if the board determines that this procedure will serve the public interest by providing a substantial fiscal benefit or that the use of the traditional awarding of contracts is not practicable for meeting desired construction standards or delivery schedules and if the formula for considering the time of completion is specifically stated in the bidding information. The board may reject any or all bids and readvertise.
D. The board of supervisors, a member of the board of supervisors or any other official or agent of a county affected by this section shall not segregate or divide into separate units a contiguous or continuous portion of highway construction or reconstruction or divide into separate portions an item of equipment or generally recognized unit of supplies or material to avoid the restrictions imposed by subsection A of this section.
E. The board of supervisors, a member of the board of supervisors or any other official or agent of a county affected by this section shall make every effort to combine the following:
1. Separate portions of highway construction or reconstruction projects.
2. Items of equipment, supplies and materials.
F. After a contract has been awarded, the board of supervisors' authorized representative may authorize change orders to the contract if necessary pursuant to guidelines set by the board of supervisors. This authority does not permit the board of supervisors' authorized representative to act independently to award new contracts.
G. A building, structure, addition or alteration may be constructed without complying with the bidding requirements of this section if the construction, including construction of buildings or structures on public or private property, is required as a condition of development of private property and is authorized by section 9‑463.01 or 11-821 or 11-822. For the purposes of this subsection, building does not include any police, fire, school, library or other public building.
H. Subsections A, B and C of this section do not apply to procurement of construction‑manager‑at‑risk, design‑build and job‑order‑contracting construction services pursuant to title 34, chapter 6.
Sec. 7. Section 28-8481, Arizona Revised Statutes, as amended by Laws 2010, chapter 244, section 17, is amended to read:
28-8481. Planning and zoning; military airport and ancillary military facility's operation compatibility; compliance review; penalty; definitions
A. A political subdivision that has territory in the vicinity of a military airport or ancillary military facility that includes property in a high noise or accident potential zone shall adopt comprehensive and general plans and school district development plans, if applicable, for property in the high noise or accident potential zone to assure development compatible with the high noise and accident potential generated by military airport and ancillary military facility operations that have or may have an adverse effect on public health and safety. Each political subdivision, excluding school districts, shall adopt and enforce zoning regulations for property in the high noise or accident potential zone to assure development compatible with the high noise and accident potential generated by military airport and ancillary military facility operations that have or may have an adverse effect on public health and safety.
B. A political subdivision that has territory in the vicinity of a military airport or ancillary military facility shall incorporate sound attenuation standards pursuant to section 28‑8482 into any building code in existence on or adopted after July 1, 2001 or after July 1 of the year in which the land becomes territory in the vicinity of a military airport or ancillary military facility. This section does not affect or require the modification of any building permit issued before July 1, 2001 or before July 1 of the year in which the land becomes territory in the vicinity of a military airport or ancillary military facility.
C. A political subdivision that has territory in the vicinity of a military airport or ancillary military facility that includes property in a high noise or accident potential zone shall adopt, administer and enforce the zoning regulations or school district development plans authorized by subsection A of this section in the same manner as the comprehensive zoning ordinance or school district development plans of the political subdivision as provided by law, except that a variance shall not be granted without a specific finding that the purpose of military airport or ancillary military facility compatibility is preserved.
D. This section does not affect the existing authority of a political subdivision to plan and zone on the basis of noise or accident potential in the vicinity of an airport owned or controlled by the political subdivision or to adopt restrictions or limitations in addition to those required by this section applicable to territory in the vicinity of a military airport or ancillary military facility.
E. This section does not restrict, limit or modify, or authorize or require any political subdivision to restrict, limit or modify, the right of a landowner to undertake and complete development and use of any property under the terms and conditions of a development plan or school district development plan approved on or before December 31, 2000, or on or before December 31 of the year in which the development's property becomes territory in the vicinity of a military airport or ancillary military facility or pursuant to a written determination of compatibility issued by the military airport or ancillary military facility on or before December 31, 2004, by the political subdivision in whose territory or area of jurisdiction the property is located, except that the development must comply with the sound attenuation standards and specifications incorporated into any building code adopted pursuant to section 28‑8482 by the political subdivision in whose territory or area of jurisdiction the development is located.
F. This section does not restrict, limit or modify, or authorize or require any political subdivision to restrict, limit or modify, the right of a landowner to undertake and complete development and use of any property located in a high noise or accident potential zone that is appurtenant to an ancillary military facility under the terms and conditions of a development plan or school district development plan approved on or before December 31, 2004 by the political subdivision in whose territory or area of jurisdiction the property is located or pursuant to a written determination of compatibility issued by the military airport or ancillary military facility on or before December 31, 2004, except that the development shall comply with the sound attenuation standards and specifications incorporated into any building code adopted pursuant to section 28‑8482 by the political subdivision in whose territory or area of jurisdiction the development is located.
G. On or after July 1, 2001 or on or after December 31 of the year in which the property becomes territory in a high noise or accident potential zone, a political subdivision that has property in a high noise or accident potential zone shall notify the owner or owners of property in the high noise and accident potential zone of any additions or changes under this section to the general plan, comprehensive plan, zoning regulations or school district development plan of the political subdivision applicable to property in the high noise or accident potential zone. The political subdivision shall provide a notice of such additions or changes by publication as provided in section 9‑462.04, subsection A or section 11‑829, subsection C 11‑814, subsection D, including a statement that the property is located in a high noise or accident potential zone, at least thirty days before final approval of the addition to or change in the general plan, permitted land uses, zoning regulation or school district development plan and within thirty days following the final approval of such an addition to or change in the general plan, permitted land uses, zoning regulation or school district development plan.
H. Any property owner described in subsection G of this section shall notify potential purchasers of the property and any potential lessees or renters that the property is located in a high noise and accident potential zone and is subject to the requirements of this section.
I. If a political subdivision includes property in the high noise or accident potential zone of a military airport or ancillary military facility, the political subdivision shall send notice to the attorney general of any approval, adoption or readoption of, or major amendment to, the general or comprehensive plan that impacts property in the high noise or accident potential zone of a military airport or ancillary military facility within three business days after the approval, adoption or readoption. If the attorney general determines the approval, adoption or readoption of the general or comprehensive plan or the major amendment to the general or comprehensive plan is not in compliance with subsection J of this section, the attorney general shall notify the political subdivision by certified mail, return receipt requested, of the determination of noncompliance. Within thirty days after the receipt of a determination of noncompliance by the attorney general as prescribed by this section, the governing body of the political subdivision shall reconsider any approval, adoption or readoption of, or major amendment to, the general or comprehensive plan that impacts property in the high noise or accident potential zone of a military airport or ancillary military facility. If the governing body reaffirms a prior action subject to an attorney general's determination of noncompliance pursuant to this section, the attorney general may institute a civil action pursuant to subsection L of this section. If a political subdivision timely sends notice pursuant to this subsection and the attorney general fails to timely notify the political subdivision of a determination of noncompliance, the general or comprehensive plan or major amendment to the general or comprehensive plan shall be deemed to comply with subsection J of this section.
J. The attorney general shall determine compliance with this section in accordance with the following requirements applicable to zoning and development in a high noise or accident potential zone and to zoning and development in accident potential zone one and accident potential zone two. Compliance with respect to territory located in the arrival and departure corridor but outside the accident potential zone one, two and noise contour lines as described in section 28‑8461, paragraph 9, subdivision (c) shall be determined in accordance with the requirements applicable to territory located in the 65‑69 day‑night sound level as listed below. Compliance with respect to the property described in section 28‑8461, paragraph 9, subdivision (b) shall be determined in accordance with the compatible land use plan in the joint land use study completed in February 2004. If the political subdivision and the military airport mutually agree that an individual use is compatible and consistent with the high noise or accident potential of the military airport or ancillary military facility, as applicable, the use shall be deemed to comply with this subsection. Alternatively, for an individual use or a plan for development submitted to a military airport or ancillary military facility before December 31, 2004, this subsection does not preclude the military airport from determining that the individual use or plan for development is compatible and consistent with the high noise or accident potential zone of the military airport or ancillary military facility.
Day‑night sound level in decibels
high noise or accident
potential zone (18)
Zoning and development in high
noise or accident potential
zone 65-69 70-74 75-79 80-84 85 or APZ APZ
over one two
Residential
Residential uses other than No(13) No(13) No(13) No(13) No No No
the residential uses
listed below
Single family residential Yes(9) Yes(10) Yes(11) No(13) No(13) No No(13)
that is the subject of
zoning approved on or
before December 31, 2000,
or on or before December 31
of the year in which the
property becomes territory
in the vicinity of a
military airport,
that permits one dwelling
unit per acre or less
Single family residential Yes(9) Yes(10) Yes(11) Yes(12) No(13) No No(13)
that is the primary residence
for persons engaging in
agricultural use and
ancillary residential
buildings incident to the
primary agricultural use
Transportation, communications
and utilities
Railroad and rapid rail transit Yes Yes(5) Yes(6) Yes(7) No No Yes(15)
Highway and street right-of-way Yes Yes Yes Yes Yes Yes Yes
Motor vehicle parking Yes Yes Yes Yes Yes Yes(15) Yes(15)
Communications Yes Yes(2) Yes(3) No No Yes(15) Yes(16)
(noise sensitive)
Utilities Yes Yes Yes No No Yes(15) Yes(16)
Other transportation, Yes Yes(5) Yes(6) Yes(7) Yes(8) Yes(15) Yes(16)
communications and utilities
Commercial/retail trade
Wholesale trade Yes Yes(5) Yes(6) Yes(7) No No Yes
Building materials-retail Yes Yes(5) Yes(6) Yes(7) No No Yes
General merchandise-retail Yes Yes(1) Yes(2) No No No No
Food-retail Yes Yes(1) Yes(2) No No No No
Automotive and marine Yes Yes(5) Yes(6) No No No No/Yes(17)
Apparel and accessories-retail Yes Yes(1) Yes(2) No No No No
Eating and drinking places Yes Yes(1) Yes(2) No No No No
Furniture and home Yes Yes(1) Yes(2) No No No No/Yes(17)
furnishings-retail
Other retail trade Yes Yes(1) Yes(2) No No No No
Personal and business services
Finance, insurance and real estate Yes Yes(1) Yes(2) No No No Yes
Personal services Yes Yes(1) Yes(2) No No No Yes
Business services Yes Yes(1) Yes(2) No No No Yes
Repair services Yes Yes(5) Yes(6) Yes(7) No No Yes
Contract construction services Yes Yes(5) Yes(6) No No No Yes
Indoor recreation services Yes Yes(5) Yes(6) No No No Yes
Other services Yes Yes(5) Yes(6) No No No Yes
Industrial/manufacturing
Food and kindred products Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Textile mill products Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Apparel Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Lumber and wood products Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Furniture and fixtures Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Paper and allied products Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Printing and publishing Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Chemicals and allied products Yes Yes(5) Yes(6) Yes(7) No No No
Petroleum refining and Yes Yes(5) Yes(6) Yes(7) No No No
related industries
Rubber and miscellaneous plastic Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Stone, clay and glass products Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Primary metal industries Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Fabricated metal products Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Professional, scientific and Yes Yes(1) Yes(2) No No No No
controlling instruments
Miscellaneous manufacturing Yes Yes(5) Yes(6) Yes(7) No No Yes(16)
Public and quasi-public
services
Government services Yes(1) Yes(2) Yes(2) No No No Yes(16)
Cultural activities, Yes(1) Yes(2) No No No No No
including churches
Medical and other health
services Yes(1) Yes(2) No No No No No
Cemeteries Yes(5) Yes(6) Yes(7) No No No Yes
Nonprofit organizations Yes(1) Yes(2) No No No No Yes
Correctional facilities Yes(1) Yes(2) Yes(3) Yes(4) No No Yes
Other public and quasi-public Yes(1) Yes(2) No No No No Yes(16)
services
Outdoor recreation
Playgrounds and neighborhood
parks Yes Yes No No No Yes(15) Yes
Community and regional Yes Yes No No No Yes(15) Yes
Nature exhibits Yes No No No No No No
Spectator sports, including
arenas Yes(14) Yes(14) No No No No No
Golf courses and riding stables Yes Yes(5) Yes(6) No No Yes(15) Yes
Water based recreational areas Yes Yes(5) Yes(6) No No No No
Resort and group camps Yes(1) Yes(2) No No No No No
Auditoriums and concert halls Yes(6) Yes(7) No No No No No
Outdoor amphitheaters and Yes(14) Yes(14) Yes(14) No No No No
music shells
Other outdoor recreation Yes Yes(14) Yes(14) No No No No
Resource production,
extraction and open space
Agriculture (except livestock) Yes(9) Yes(10) Yes(11) Yes(12) Yes(13)Yes(13) Yes(13)
Livestock farming and animal Yes(9) Yes(10) Yes(11) Yes(12) Yes(13)Yes(13) Yes(13)
breeding
Forestry activities Yes(9) Yes(10) Yes(13) Yes(13) Yes(13)No Yes
Fishing activities and Yes Yes No No No No No
related services
Mining activities Yes Yes Yes Yes Yes No Yes(16)
Permanent open space Yes Yes Yes Yes Yes Yes Yes
Water areas (not incidental to Yes Yes No No No No No
farming)
(1) Measures to achieve an outdoor to indoor noise reduction level of twenty‑five decibels pursuant to an ordinance adopted under section 28‑8482 must be incorporated into the design and construction of all buildings and the political subdivision must make an express finding, as part of approval, that use of noise reduction level criteria will not alleviate outdoor noise.
(2) Measures to achieve an outdoor to indoor noise reduction level of thirty decibels pursuant to an ordinance adopted under section 28‑8482 must be incorporated into the design and construction of all buildings and the political subdivision must make an express finding, as part of approval, that use of noise reduction level criteria will not alleviate outdoor noise.
(3) Measures to achieve an outdoor to indoor noise reduction level of thirty‑five decibels pursuant to an ordinance adopted under section 28‑8482 must be incorporated into the design and construction of all buildings and the political subdivision must make an express finding, as part of the approval, that use of noise reduction level criteria will not alleviate outdoor noise.
(4) Measures to achieve an outdoor to indoor noise reduction level of forty decibels pursuant to an ordinance adopted under section 28‑8482 must be incorporated into the design and construction of all buildings and the political subdivision must make an express finding, as part of the approval, that use of noise reduction level criteria will not alleviate outdoor noise.
(5) Measures to achieve an outdoor to indoor noise reduction level of twenty‑five decibels must be incorporated into the design and construction of portions of buildings where the public is received, office areas, noise sensitive areas or where normal noise level is low.
(6) Measures to achieve an outdoor to indoor noise reduction level of thirty decibels must be incorporated into the design and construction of portions of buildings where the public is received, office areas, noise sensitive areas or where normal noise level is low.
(7) Measures to achieve an outdoor to indoor noise reduction level of thirty‑five decibels must be incorporated into the design and construction of portions of buildings where the public is received, office areas, noise sensitive areas or where normal noise level is low.
(8) Measures to achieve an outdoor to indoor noise reduction level of forty decibels must be incorporated into the design and construction of portions of buildings where the public is received, office areas, noise sensitive areas or where normal noise level is low.
(9) Measures to achieve an outdoor to indoor noise reduction level of twenty‑five decibels must be incorporated into the design and construction of new residential buildings or expansions of existing residential buildings.
(10) Measures to achieve an outdoor to indoor noise reduction level of thirty decibels must be incorporated into the design and construction of new residential buildings or expansions of existing residential buildings.
(11) Measures to achieve an outdoor to indoor noise reduction level of thirty‑five decibels must be incorporated into the design and construction of new residential buildings or expansions of existing residential buildings.
(12) Measures to achieve an outdoor to indoor noise reduction level of forty decibels must be incorporated into the design and construction of new residential buildings or expansions of existing residential buildings.
(13) No new residential buildings or expansions of existing residential buildings are permitted.
(14) Compatible if special sound reinforcement systems are installed.
(15) No aboveground buildings or structures.
(16) No new buildings or improvements or expansion of nonagriculture buildings or improvements for uses that result in the release of any substance into the air that would impair visibility or otherwise interfere with operating aircraft, such as any of the following:
(a) Steam, dust and smoke.
(b) Direct or indirect reflective light emissions.
(c) Electrical emissions that would interfere with aircraft and air force communications or navigational aid systems or aircraft navigational equipment.
(d) The attraction of birds or waterfowl such as operation of sanitary landfills or maintenance of feeding stations.
(e) Explosives facilities or similar activities.
(17) If located in the extended portion of accident potential zone two in territory of a political subdivision described in section 28‑8461, paragraph 9, subdivision (a).
(18) Uses not listed are presumed to not be compatible. If the political subdivision and the military airport mutually agree that an individual use is compatible and consistent with the high noise or accident potential of the military airport or ancillary military facility, the use shall be presumed to be compatible.
K. Pursuant to subsection I of this section, the attorney general shall notify a political subdivision by certified mail, return receipt requested, if the attorney general has probable cause to believe that the political subdivision has not complied with the requirements set forth in subsection J of this section. Nothing in this section shall authorize or permit a finding of probable cause of noncompliance with respect to property that is the subject of a development plan.
L. The following apply to enforcement actions brought under this section:
1. The attorney general may institute a civil action in the name of this state in the superior court in the county of the alleged violation against a political subdivision that is required to notify the attorney general pursuant to subsection I of this section to restrain, enjoin, correct or abate a violation of this section, to collect a civil penalty ordered pursuant to this section and to collect attorney fees and costs ordered pursuant to this section if the attorney general has probable cause to believe that an action to reaffirm an approval, adoption or readoption of, or major amendment to, the general or comprehensive plan made by a political subdivision is not in compliance with subsection J of this section.
2. If the attorney general institutes a civil action pursuant to subsection I of this section, the civil action shall be filed within thirty days after the action to reaffirm an approval, adoption or readoption of, or major amendment to, the general plan or comprehensive plan.
3. The court shall award reasonable attorney fees and other costs in favor of the prevailing party for any civil enforcement action brought under this section. If the attorney general prevails, monies awarded pursuant to this paragraph shall be retained by the attorney general and are continuously appropriated.
4. The court may assess civil penalties in favor of this state to be deposited in the state general fund. The political subdivision may be liable for a civil penalty of up to five hundred dollars for each day for the first ten days and up to five thousand dollars for each subsequent day up to a maximum of fifty thousand dollars.
M. A political subdivision that has territory in the vicinity of a military airport or ancillary military facility that includes property in a high noise or accident potential zone shall submit any proposed comprehensive or general plan amendments that are applicable to property within the high noise or accident potential zone to the attorney general at least fifteen days before the first public hearing required pursuant to section 9‑461.06 or 11‑805.
N. A political subdivision shall not permit or approve a division of land zoned for residential use that is in a high noise or accident potential zone of an ancillary military facility if the division would result in a lot, parcel or fractional interest being four acres or less unless the land division is part of a development plan or a development agreement approved before July 30, 2004 or is determined by the military airport or ancillary military facility to be compatible with its operations before December 31, 2004. A political subdivision may grant a waiver from this subsection.
O. For purposes of determining the fair market value of property located in a high noise or accident potential zone, or the development rights appurtenant to the property, for acquisition by an agency or instrumentality of the United States, this state or a political subdivision of this state, property located in a high noise or accident potential zone that is not the subject of a development plan under subsection E or F of this section shall be deemed to have zoning allowing at least one residential dwelling per acre.
P. For the purposes of this section:
1. "Development plan":
(a) Means a plan that is submitted to and approved by the governing body of the political subdivision pursuant to a zoning ordinance or regulation adopted pursuant to title 9, chapter 4, article 6.1 or title 11, chapter 6 and that describes with reasonable certainty the density and intensity of use for a specific parcel or parcels of property.
(b) Includes a planned community development plan, a planned area development plan, a planned unit development plan, a development plan that is the subject of a development agreement adopted pursuant to section 9‑500.05 or 11-1101, a site plan, a subdivision plat or any other land use approval designation that is the subject of a zoning ordinance adopted pursuant to title 9, chapter 4, article 6.1 or title 11, chapter 6.
(c) Means a conceptual plan for development that generally depicts densities on a particular property that a military airport, as described in section 28-8461, paragraph 9, subdivision (a), deems is compatible with the operation of the ancillary military facility.
2. "Major amendment" means a substantial alteration of a political subdivision's land use mixture or balance as established in the political subdivision's existing general or comprehensive plan land use element.
Sec. 8. Laws 2010, chapter 175, section 2 is amended to read:
Sec. 2. Suspension of action on county comprehensive plan
Notwithstanding section 11‑824 11‑805, subsection B M, Arizona Revised Statutes, a county board of supervisors is not required to readopt an existing comprehensive plan or adopt a new comprehensive plan until July 1, 2015.
Sec. 9. Effective date
This act is effective from and after September 30, 2011.
