Bill Text: AZ SB1206 | 2010 | Forty-ninth Legislature 2nd Regular | Engrossed
Bill Title: Counties; planning; development; districts; administration
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2010-05-06 - Governor Signed [SB1206 Detail]
Download: Arizona-2010-SB1206-Engrossed.html
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Senate Engrossed |
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State of Arizona Senate Forty-ninth Legislature Second Regular Session 2010
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SENATE BILL 1206 |
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AN ACT
amending sections 9‑462.01, 11‑251, 11‑254.06 and 11‑254.07, Arizona Revised Statutes; repealing title 11, chapter 6, articles 1 and 2, Arizona Revised Statutes; renumbering title 11, chapter 6, articles 3 and 4, Arizona Revised Statutes, as title 11, chapter 6, articles 5 and 6, RESPECTIVELY; amending title 11, chapter 6, Arizona Revised Statutes, by adding new articles 1, 2, 3 and 4; amending sections 11‑866, 11‑1101, 13‑1422, 27‑441, 27‑442, 27‑446, 27‑447, 28‑6705, 28‑6713, 28‑8481, 32‑2181, 32‑2183, 32‑2197.08, 33‑406 and 33‑422, Arizona Revised Statutes; Amending section 34‑201, Arizona Revised Statutes, as amended by laws 2009, chapter 101, section 6; amending section 34‑201, Arizona Revised Statutes, as amended by this act; repealing section 34‑201, Arizona Revised Statutes, as amended by laws 2009, chapter 101, section 7; amending sections 34‑610, 37‑132, 37‑331.03, 40‑360.53, 41‑1512.02, 41‑1519, 45‑108, 45‑108.01, 45‑108.02, 45‑108.03, 45‑108.04, 45‑576, 48‑3609.01, 48‑6414 and 49‑1273, Arizona Revised Statutes; blending multiple enactments; 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 9-462.01, Arizona Revised Statutes, is amended to read:
9-462.01. Zoning regulations; public hearing; definitions
A. Pursuant to this article, the legislative body of any municipality by ordinance may in order to conserve and promote the public health, safety and general welfare:
1. Regulate the use of buildings, structures and land as between agriculture, residence, industry, business and other purposes.
2. Regulate signs and billboards.
3. Regulate the location, height, bulk, number of stories and size of buildings and structures, the size and use of lots, yards, courts and other open spaces, the percentage of a lot which may be occupied by a building or structure, access to incident solar energy and the intensity of land use.
4. Establish requirements for off‑street parking and loading.
5. Establish and maintain building setback lines.
6. Create civic districts around civic centers, public parks, public buildings or public grounds and establish regulations therefor.
7. Require as a condition of rezoning public dedication of rights‑of‑way as streets, alleys, public ways, drainage and public utilities as are reasonably required by or related to the effect of the rezoning.
8. Establish floodplain zoning districts and regulations to protect life and property from the hazards of periodic inundation. Regulations may include variable lot sizes, special grading or drainage requirements, or other requirements deemed necessary for the public health, safety or general welfare.
9. Establish special zoning districts or regulations for certain lands characterized by adverse topography, adverse soils, subsidence of the earth, high water table, lack of water or other natural or man‑made hazards to life or property. Regulations may include variable lot sizes, special grading or drainage requirements, or other requirements deemed necessary for the public health, safety or general welfare.
10. Establish districts of historical significance provided that:
(a) The ordinances may require that special permission be obtained for any development within the district if the legislative body has adopted a plan for the preservation of districts of historical significance which meets the requirements of subdivision (b) of this paragraph, and the criteria contained in the ordinance are consistent with the objectives set forth in the plan.
(b) A plan for the preservation of districts of historical significance shall identify districts of special historical significance, state the objectives to be sought concerning the development or preservation of sites, area and structures within the district, and formulate a program for public action including the provision of public facilities and the regulation of private development and demolition necessary to realize these objectives.
(c) The ordinance establishing districts of historical significance shall set forth standards necessary to preserve the historical character of the area so designated.
(d) The ordinances may designate or authorize any committee, commission, department or person to designate structures or sites of special historical significance in accordance with criteria contained in the ordinance, and no designation shall be made except after a public hearing upon notice of the owners of record of the property so designated. The ordinances may require that special permission be obtained for any development respecting the structures or sites.
11. Establish age specific community zoning districts in which residency is restricted to a head of a household or spouse who must be of a specific age or older and in which minors are prohibited from living in the home. Age specific community zoning districts shall not be overlaid over property without the permission of all owners of property included as part of the district unless all of the property in the district has been developed, advertised and sold or rented under specific age restrictions. The establishment of age specific community zoning districts is subject to all of the public notice requirements and other procedures prescribed by this article.
12. Establish procedures, methods and standards for the transfer of development rights within its jurisdiction. Any proposed transfer of development rights from the sending property or to the receiving property shall be subject to the notice and hearing requirements of section 9‑462.04 and shall be subject to the approval and consent of the property owners of both the sending and receiving property. Before any transfer of development rights, a municipality shall adopt an ordinance providing for:
(a) The issuance and recordation of the instruments necessary to sever development rights from the sending property and to affix development rights to the receiving property. These instruments shall be executed by the affected property owners and lienholders.
(b) The preservation of the character of the sending property and assurance that the prohibitions against the use and development of the sending property shall bind the landowner and every successor in interest to the landowner.
(c) The severance of transferable development rights from the sending property and the delayed transfer of development rights to a receiving property.
(d) The purchase, sale, exchange or other conveyance of transferable development rights prior to the rights being affixed to a receiving property.
(e) A system for monitoring the severance, ownership, assignment and transfer of transferable development rights.
(f) The right of a municipality to purchase development rights and to hold them for resale.
(g) The right of a municipality at its discretion to enter into an intergovernmental agreement with another municipality or a county for the transfer of development rights between jurisdictions. The transfer shall comply with this paragraph, except that if the sending property is located in an unincorporated area of a county, the approval of the development rights to be sent to a municipality shall comply with section 11-821.03 11-817.
B. For the purposes prescribed in subsection A of this section, the legislative body may divide a municipality, or portion of a municipality, into zones of the number, shape and area it deems best suited to carry out the purpose of this article and articles 6, 6.2 and 6.3 of this chapter.
C. All zoning regulations shall be uniform for each class or kind of building or use of land throughout each zone, but the regulations in one type of zone may differ from those in other types of zones as follows:
1. Within individual zones, there may be uses permitted on a conditional basis under which additional requirements must be met, including requiring site plan review and approval by the planning agency. The conditional uses are generally characterized by any of the following:
(a) Infrequency of use.
(b) High degree of traffic generation.
(c) Requirement of large land area.
2. Within residential zones, the regulations may permit modifications to minimum yard lot area and height requirements.
D. To carry out the purposes of this article and articles 6 and 6.2 of this chapter, the legislative body 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 which 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 9‑462.04.
E. The legislative body may approve a change of zone conditioned upon 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 legislative body, after notification by certified mail to the owner and applicant who requested the rezoning, shall schedule a public hearing to take administrative action to extend, remove or determine compliance with the schedule for development or take legislative action to cause the property to revert to its former zoning classification.
F. All zoning and rezoning ordinances or regulations adopted under this article shall be consistent with and conform to the adopted general plan of the municipality, if any, as adopted under article 6 of this chapter. In the case of uncertainty in construing or applying the conformity of any part of a proposed rezoning ordinance to the adopted general plan of the municipality, the ordinance 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 general plan. A rezoning ordinance conforms with the land use element of the general plan if it proposes land uses, densities or intensities within the range of identified uses, densities and intensities of the land use element of the general plan.
G. No regulation or ordinance under this section may prevent or restrict agricultural composting on farmland that is five or more contiguous acres and that meets the requirements of this subsection. An agricultural composting operation shall notify in writing the legislative body of the city or town and the nearest fire department of the location of the composting operation. If the nearest fire department is located in a different city or town from the agricultural composting operation, the agricultural composting operation shall also notify in writing the fire department of the city or town in which the operation is located. Agricultural composting is subject to sections 3‑112 and 49‑141. Agricultural composting may not be conducted within one thousand three hundred twenty feet of an existing residential use, unless the operations are conducted on farmland or land leased in association with farmland. Any disposal of manure shall comply with section 49‑247. For the purposes of this subsection:
1. "Agricultural composting" means the controlled biological decomposition of organic solid waste under in‑vessel anaerobic or aerobic conditions where all or part of the materials are generated on the farmland or will be used on the farmland associated with the agricultural composting operation.
2. "Farmland" has the same meaning prescribed in section 3‑111 and is subject to regulation under section 49‑247.
H. For the purposes of this section:
1. "Development rights" means the maximum development that would be allowed on the sending property under any general or specific plan and local zoning ordinance of a municipality in effect on the date the municipality adopts an ordinance pursuant to subsection A, paragraph 12 of this section respecting the permissible use, area, bulk or height of improvements made to the lot or parcel. Development rights may be calculated and allocated in accordance with factors including dwelling units, area, floor area, floor area ratio, height limitations, traffic generation or any other criteria that will quantify a value for the development rights in a manner that will carry out the objectives of this section.
2. "Receiving property" means a lot or parcel within which development rights are increased pursuant to a transfer of development rights. Receiving property shall be appropriate and suitable for development and shall be sufficient to accommodate the transferable development rights of the sending property without substantial adverse environmental, economic or social impact to the receiving property or to neighboring property.
3. "Sending property" means a lot or parcel with special characteristics, including farmland, woodland, desert land, mountain land, floodplain, natural habitats, recreation or parkland, including golf course area, or land that has unique aesthetic, architectural or historic value that a municipality desires to protect from future development.
4. "Transfer of development rights" means the process by which development rights from a sending property are affixed to one or more receiving properties.
Sec. 2. Section 11-251, Arizona Revised Statutes, is amended to read:
11-251. Powers of board
The board of supervisors, under such limitations and restrictions as are prescribed by law, may:
1. Supervise the official conduct of all county officers and officers of all districts and other subdivisions of the county charged with assessing, collecting, safekeeping, managing or disbursing the public revenues, see that such officers faithfully perform their duties and direct prosecutions for delinquencies, and, when necessary, require the officers to renew their official bonds, make reports and present their books and accounts for inspection.
2. Divide the counties into such districts or precincts as required by law, change them and create others as convenience requires.
3. Establish, abolish and change election precincts, appoint inspectors and judges of elections, canvass election returns, declare the result and issue certificates thereof.
4. Lay out, maintain, control and manage public roads, ferries and bridges within the county and levy such tax for that purpose as may be authorized by law.
5. Provide for the care and maintenance of the sick of the county, erect and maintain hospitals for that purpose and, in its discretion, provide a farm in connection with the county hospital and adopt ordinances for working the farm.
6. Provide suitable rooms for county purposes.
7. Purchase, receive by donation or lease real or personal property necessary for the use of the county prison and take care of, manage and control the property, but no purchase of real property shall be made unless the value has been previously estimated by three disinterested citizens of the county, appointed by the board for that purpose, and no more than the appraised value shall be paid for the property.
8. Cause to be erected and furnished a courthouse, jail and hospital and such other buildings as necessary, and construct and establish a branch jail, when necessary, at a point distant from the county seat.
9. Sell at public auction, after thirty days' previous notice given by publication in a newspaper of the county, stating the time and place of the auction, and convey to the highest bidder, for cash or contract of purchase extending not more than ten years from the date of sale and upon such terms and conditions and for such consideration as the board shall prescribe, any property belonging to the county that the board deems advantageous for the county to sell, or that the board deems unnecessary for use by the county, and shall pay the proceeds thereof into the county treasury for use of the county, except that personal property need not be sold but may be used as a trade‑in on the purchase of personal property when the board deems this disposition of the personal property to be in the best interests of the county. When the property for sale is real property, the board shall have such property appraised by a qualified independent fee appraiser who has an office located in this state. The appraiser shall establish a minimum price, which shall not be less than ninety per cent of the appraised value. The notice regarding the sale of real property shall be published in the county where the property is situated and may be published in one or more other counties, and shall contain, among other things, the appraised value, the minimum acceptable sale price, and the common and legal description of the real property. Notwithstanding the requirement for a sale at public auction prescribed in this paragraph, a county, with unanimous consent of the board, without a public auction, may sell or lease any county property to any other duly constituted governmental entity, including the state, cities, towns and other counties. A county, with unanimous consent of the board, and without public auction, may grant an easement on county property for public purposes to a utility as defined in section 40-491. A county, with unanimous consent of the board, without public auction, may sell or lease any county property for a specific use to any solely charitable, social or benevolent nonprofit organization incorporated or operating in this state. A county may dispose of surplus equipment and materials that have little or no value or that are unauctionable in any manner authorized by the board.
10. Examine and exhibit the accounts of all officers having the care, management, collection or disbursement of money belonging to the county or appropriated by law or otherwise for the use and benefit of the county.
11. Examine, settle and allow all accounts legally chargeable against the county, order warrants to be drawn on the county treasurer for that purpose and provide for issuing the warrants.
12. Levy such tax annually on the taxable property of the county as may be necessary to defray the general current expenses thereof, including salaries otherwise unprovided for, and levy such other taxes as are required to be levied by law.
13. Equalize assessments.
14. Direct and control the prosecution and defense of all actions to which the county is a party, and compromise them.
15. Insure the county buildings in the name of and for the benefit of the county.
16. Fill by appointment all vacancies occurring in county or precinct offices.
17. Adopt provisions necessary to preserve the health of the county, and provide for the expenses thereof.
18. With the approval of the department of health services, contract with any qualified person to provide all or part of the health services, funded through the department of health services with federal or state monies, that the board in its discretion extends to residents of the county.
19. Contract for county printing and advertising, and provide books and stationery for county officers.
20. Provide for rebinding county records, or, if necessary, the transcribing of county records.
21. Make and enforce necessary rules and regulations for the government of its body, the preservation of order and the transaction of business.
22. Adopt a seal for the board, a description and impression of which shall be filed by the clerk in the office of the county recorder and the secretary of state.
23. Establish, maintain and conduct or aid in establishing, maintaining and conducting public aviation fields, purchase, receive by donation or lease any property necessary for that purpose, lease, at a nominal rental if desired, sell such aviation fields or property to the United States or any department, or sell or lease such aviation fields to a city, exchange lands acquired pursuant to this section for other lands, or act in conjunction with the United States in maintaining, managing and conducting all such property. If any such property or part of that property is not needed for these purposes, it shall be sold by the board and the proceeds shall be paid into the general fund of the county.
24. Acquire and hold property for the use of county fairs, and conduct, take care of and manage them.
25. Authorize the sheriff to offer a reward, not exceeding ten thousand dollars in one case, for information leading to the arrest and conviction of persons charged with crime.
26. Contract for the transportation of insane persons to the state hospital or direct the sheriff to transport such persons. The county is responsible for such expense to the extent the expense is not covered by any third party payor.
27. Provide for the reasonable expenses of burial for deceased indigents as provided in section 36‑831 and maintain a permanent register of deceased indigents, including name, age and date of death, and when burial occurs, the board shall mark the grave with a permanent marker giving the name, age, and date of birth, if known.
28. Sell or grant to the United States the title or interest of the county in any toll road or toll train in or partly within a national park, upon such terms and consideration as may be agreed upon by the board and the secretary of the interior of the United States.
29. Enter into agreements for acquiring rights‑of‑way, construction, reconstruction or maintenance of highways in their respective counties, including highways that pass through Indian reservations, with the government of the United States, acting through its duly authorized officers or agents pursuant to any act of Congress, except that the governing body of any Indian tribe whose lands are affected must consent to the use of its land, and any such agreements entered into before June 26, 1952 are validated and confirmed.
30. Do and perform all other acts and things necessary to the full discharge of its duties as the legislative authority of the county government, including receiving and accepting payment of monies by credit card or debit card, or both. Any fees or costs incurred by the use of the credit or debit card shall be paid by the person tendering payment unless the charging entity determines that the financial benefits of accepting credit cards or debit cards exceeds the additional processing fees.
31. Make and enforce all local, police, sanitary and other regulations not in conflict with general law.
32. Budget for funds for foster home care during the school week for mentally retarded and otherwise handicapped children who reside within the county and attend a school for the handicapped in a city or town within such county.
33. Do and perform all acts necessary to enable the county to participate in the economic opportunity act of 1964 (P.L. 88‑452; 78 Stat. 508), as amended.
34. Provide a plan or plans for its employees that provide tax deferred annuity and deferred compensation plans as authorized pursuant to title 26, United States Code. Such plans shall allow voluntary participation by all employees of the county. Participating employees shall authorize the board to make reductions in their remuneration as provided in an executed deferred compensation agreement.
35. Adopt and enforce standards for shielding and filtration of commercial or public outdoor portable or permanent light fixtures in proximity to astronomical or meteorological laboratories.
36. Subject to the prohibitions, restrictions and limitations as set forth in section 11‑830 11-812, adopt and enforce standards for excavation, landfill and grading to prevent unnecessary loss from erosion, flooding and landslides.
37. Make and enforce necessary ordinances for the operation and licensing of any establishment not in the limits of an incorporated city or town in which is carried on the business of providing baths, showers or other forms of hydrotherapy or any service of manual massage of the human body.
38. Provide pecuniary compensation as salary or wages for overtime work performed by county employees, including those employees covered by title 23, chapter 2, article 9. In so providing, the board may establish salary and wage plans incorporating classifications and conditions prescribed by the federal fair labor standards act.
39. Establish, maintain and operate facilities that provide for physical evaluation, diagnosis and treatment of patients and that do not keep patients overnight as bed patients or treat patients under general anesthesia.
40. Enact ordinances under its police authority prescribing reasonable curfews in the entire unincorporated area or any area less than the entire unincorporated area of the county for minors and fines not to exceed the fine for a petty offense for violation of such ordinances. Nothing in this paragraph shall be construed to require a request from an association or a majority of the residents of an area before the board may enact an ordinance applicable to the entire or any portion of the unincorporated area. An ordinance enacted pursuant to this paragraph shall provide that a minor is not violating a curfew if the minor is accompanied by a parent, a guardian or an adult having supervisorial custody, is on an emergency errand or has been specifically directed to the location on reasonable, legitimate business or some other activity by the parent, guardian or adult having supervisorial custody. If no curfew ordinance is applicable to a particular unincorporated area of the county, the board may adopt a curfew ordinance on the request or petition of either:
(a) A homeowners' association that represents a majority of the homeowners in the area covered by the association and to which the curfew would apply.
(b) A majority of the residents of the area to which the curfew would apply.
41. Lease or sublease personal property owned by the county to other political subdivisions of this state to be used for a public purpose.
42. In addition to the agreements authorized by section 11‑651, enter into long‑term agreements for the purchase of personal property, provided that the board may cancel any such agreement at the end of a fiscal year, at which time the seller may repossess the property and the agreement shall be deemed terminated.
43. Make and enforce necessary ordinances not in conflict with the laws of this state to regulate off‑road recreational motor vehicles that are operated within the county on public lands without lawful authority or on private lands without the consent of the lawful owner or that generate air pollution. For the purposes of this paragraph, "off‑road recreational motor vehicle" means three and four wheel vehicles manufactured for recreational nonhighway all terrain travel.
44. Acquire land for roads, drainage ways and other public purposes by exchange without public auction, except that notice shall be published thirty days before the exchange, listing the property ownership and descriptions.
45. Purchase real property for public purposes, provided that final payment shall be made not later than five years after the date of purchase.
46. Lease‑purchase real property and improvements for real property for public purposes, provided that final payment shall be made not later than twenty‑five years after the date of purchase. Any increase in the final payment date from fifteen years up to the maximum of twenty‑five years shall be made only on unanimous approval by the board of supervisors.
47. Make and enforce ordinances for the protection and disposition of domestic animals subject to inhumane, unhealthful or dangerous conditions or circumstances provided that nothing in this paragraph limits or restricts the authority granted to incorporated cities and towns or counties pursuant to section 13‑2910. An ordinance enacted pursuant to this paragraph shall not restrict or limit the authority of the game and fish commission to regulate the taking of wildlife. For the purposes of this paragraph, "domestic animal" means an animal kept as a pet and not primarily for economic purposes.
48. If a part of a parcel of land is to be taken for roads, drainage, flood control or other public purposes and the board and the affected property owner determine that the remainder will be left in such a condition as to give rise to a claim or litigation concerning severance or other damage, acquire the whole parcel by purchase, donation, dedication, exchange, condemnation or other lawful means, and the remainder may be sold or exchanged for other properties needed for any public purpose.
49. Make and enforce necessary rules providing for the reimbursement of travel and subsistence expenses of members of county boards, commissions and advisory committees when acting in the performance of their duties, if the board, commission or advisory committee is authorized or required by federal or state law or county ordinance, and the members serve without compensation.
50. Provide a plan or plans for county employee benefits that allow for participation in a cafeteria plan that meets the requirements of the United States internal revenue code of 1986.
51. Provide for fringe benefits for county employees, including sick leave, personal leave, vacation and holiday pay and jury duty pay.
52. Make and enforce ordinances that are more restrictive than state requirements to reduce or encourage the reduction of carbon monoxide and ozone levels, provided an ordinance does not establish a standard for vehicular emissions, including ordinances to reduce or encourage the reduction of the commuter use of motor vehicles by employees of the county and employees whose place of employment is in unincorporated areas of the county.
53. Make and enforce ordinances to provide for the reimbursement of up to one hundred per cent of the cost to county employees of public bus or van pool transportation to and from their place of employment.
54. Lease for public purposes any real property, improvements for real property and personal property under the same terms and conditions, to the extent applicable, as are specified in sections 11‑651 and 11‑653 for lease‑purchases.
55. Enact ordinances prescribing regulation of alarm systems and providing for civil penalties to reduce the incidence of false alarms at business and residential structures relating to burglary, robbery, fire and other emergencies not within the limits of an incorporated city or town.
56. In addition to paragraph 9 of this section, and notwithstanding section 23‑504, sell or dispose of, at no less than fair market value, county personal property that the board deems no longer useful or necessary through a retail outlet or to another government entity if the personal property has a fair market value of no more than one thousand dollars, or by retail sale or private bid, if the personal property has a fair market value of no more than fifteen thousand dollars. Notice of sales in excess of one thousand dollars shall include a description and sale price of each item and shall be published in a newspaper of general circulation in the county, and for thirty days after notice other bids may be submitted that exceed the sale price by at least five per cent. The county shall select the highest bid received at the end of the thirty day period.
57. Sell services, souvenirs, sundry items or informational publications that are uniquely prepared for use by the public and by employees and license and sell information systems and intellectual property developed from county resources that the county is not obligated to provide as a public record.
58. On unanimous consent of the board of supervisors, license, lease or sell any county property pursuant to paragraphs 56 and 57 of this section at less than fair market value to any other governmental entity, including this state, cities, towns, public improvement districts or other counties within or outside of this state, or for a specific purpose to any charitable, social or benevolent nonprofit organization incorporated or operating in this state.
59. On unanimous consent of the board of supervisors, provide technical assistance and related services to a fire district pursuant to an intergovernmental agreement.
60. Adopt contracting procedures for the operation of a county health system pursuant to section 11‑291. Before the adoption of contracting procedures the board shall hold a public hearing. The board shall publish one notification in a newspaper of general circulation in the county seat at least fifteen days before the hearing.
61. Enter into an intergovernmental agreement pursuant to chapter 7, article 3 of this title for a city or town to provide emergency fire or emergency medical services pursuant to section 9‑500.23 to a county island as defined in section 11‑251.12. The board may charge the owners of record in the county island a fee to cover the cost of an intergovernmental agreement that provides fire and emergency medical services.
62. In counties that employ or have designated an animal control county enforcement agent pursuant to section 11‑1005, enter into agreements with foundations or charitable organizations to solicit donations, property or services, excluding enforcement or inspection services, for use by the county enforcement agent solely to perform nonmandated services and to fund capital improvements for county animal control, subject to annual financial and performance audits by an independent party as designated by the county board of supervisors. For the purposes of this paragraph, nonmandated services are limited to low cost spay and neuter services, public education and outreach efforts, pet adoption efforts, care for pets that are victims of cruelty or neglect and support for volunteer programs.
63. Adopt and provide for the enforcement of ordinances prohibiting open fires and campfires on designated lands in the unincorporated areas of the county when a determination of emergency is issued by the county emergency management officer and the board deems it necessary to protect public health and safety on those lands.
64. Fix the amount of license fees to be paid by any person, firm, corporation or association for carrying on any game or amusement business in unincorporated areas of the county and prescribe the method of collection or payment of those fees, for a stated period in advance, and fix penalties for failure to comply by fine. Nothing in this article shall be construed as authorizing any county to require an occupational license or fee for any activity if state law precludes requiring such a license or fee.
65. Adopt and enforce ordinances for the prevention, abatement and removal of graffiti, providing that any restrictions on the retail display of potential graffiti tools be limited to any of the following, as determined by the retail business:
(a) In a place that is in the line of sight of a cashier or in the line of sight from a work station normally continuously occupied during business hours.
(b) In a manner that makes the product accessible to a patron of the business establishment only with the assistance of an employee of the establishment.
(c) In an area electronically protected, or viewed by surveillance equipment that is monitored, during business hours.
66. Adopt ordinances and fees related to the implementation of a local stormwater quality program pursuant to title 49, chapter 2, article 11.
Sec. 3. Section 11-254.06, Arizona Revised Statutes, is amended to read:
11-254.06. County infill incentive districts
A. The board of supervisors may designate an infill incentive district in any unincorporated area of the county that meets at least three of the following requirements:
1. There is a large number of vacant, older or dilapidated structures.
2. There is a large number of vacant or underused parcels of property that are of small or inappropriate sizes or that are environmentally contaminated, that are owned by different owners and that are located in an area that lacks the presence of development and investment activity compared to other areas in the county.
3. There is a large number of parcels of property or buildings where nuisances exist or occur.
4. There is a high occurrence of crime.
5. There is a continuing decline in population.
B. Before establishing an infill incentive district, the board of supervisors shall:
1. Identify the boundaries of the proposed district.
2. Notify the owners of private property in the proposed district and property managers of federal and state land in the proposed district by first class mail sent to the addresses on the most recent tax roll. The notice shall be mailed at least fifteen days before the hearing held pursuant to paragraph 4 of this subsection.
3. Publish notice of the proposed district in a newspaper of general circulation in the county once each week for two consecutive weeks before the hearing held pursuant to paragraph 4 of this subsection.
4. Hold at least one public hearing in the county supervisorial district in which the proposed district is located to provide information and receive public comments.
C. If, after the hearing, it appears to the board that the public interest, convenience and welfare will be served by establishing a county an infill incentive district, the board may establish the district by adopting a resolution stating the reasons for establishing the district, the specific conditions described in subsection A of this section that qualify the area for as a district and provisions for the orderly and beneficial redevelopment of the district.
D. If the board of supervisors establishes an infill incentive district, it shall adopt an infill incentive plan to encourage redevelopment in the district. The plan shall emphasize voluntary incentives, including, if appropriate, continuing traditional rural and agricultural enterprises. The plan may include:
1. Expedited zoning or rezoning procedures.
2. Expedited processing of plans and proposals.
3. Waivers of county and county improvement district fees and assessments for development activities.
4. Waivers of development standards and procedural requirements.
E. The infill incentive plan shall not impair the ability of utilities to provide electricity, water, natural gas or other services in accordance with health, safety and industry standards, including meeting electric service load growth demand by customers.
F. Infill incentives established pursuant to this section shall not be in violation of the requirements of the county comprehensive plan pursuant to section 11‑821 11-804.END_STATUTE
Sec. 4. Section 11-254.07, Arizona Revised Statutes, is amended to read:
11-254.07. Renewable energy incentive districts; definition
A. The board of supervisors may designate a renewable energy incentive district in any unincorporated area of the county if all of the following apply:
1. The proposed district consists of vacant or underused parcel or parcels of property, or any other parcel or parcels of property the board of supervisors deems suitable for renewable energy equipment, that are appropriate sizes for the construction and operation of renewable energy equipment. The board of supervisors may designate large portions of unincorporated county land or noncontiguous portions of land as a renewable energy incentive district or districts.
2. The proposed district is located within an area of the county so that the construction and operation of renewable energy equipment would not be incompatible with other uses of property in the area considering factors relating to the construction and operation of renewable energy equipment including:
(a) The ability to adequately buffer the district from surrounding incompatible uses.
(b) The noise level emanating from the district alone and in relation to ambient noise levels at the perimeter of the property falling within the proposed district and relative to other adjacent lands.
(c) The extent to which the district would be located in proximity to existing transportation and electrical transmission corridors.
(d) Compatibility with commercial and military air space requirements.
3. The board of supervisors has evaluated the extent to which the proposed district is consistent with the existing county comprehensive plan and has determined that the proposed district does not conflict with the plan. The board of supervisors may determine that the district is not a major amendment to the county comprehensive plan pursuant to section 11‑824 11-805.
B. Before establishing a renewable energy incentive district, the board of supervisors shall:
1. Identify the boundaries of the proposed district.
2. Notify the owners of private property in the proposed district, property managers of federal and state land in the proposed district and all property owners with land within one mile of the outer perimeter of the proposed district by first class mail sent to the addresses on the most recent tax roll. The notice shall be mailed at least fifteen days before the hearing held pursuant to paragraph 4 of this subsection.
3. Publish notice of the proposed district in a newspaper of general circulation in the county once each week for two consecutive weeks before the hearing held pursuant to paragraph 4 of this subsection.
4. Hold at least one public hearing in the county supervisorial district in which the proposed district is located to provide information and receive public comments.
C. If, after the hearing, it appears to the board of supervisors that the public interest, convenience and welfare will be served by establishing a renewable energy incentive district, the board of supervisors may establish the district by adopting a resolution stating the reasons for establishing the district, the specific conditions described in subsection A of this section that qualify the area for a district and provisions for the orderly and beneficial redevelopment of the district.
D. If the board of supervisors establishes a renewable energy incentive district, it shall adopt a renewable energy incentive plan to encourage the construction and operation of renewable energy equipment in the district. The plan may include:
1. Expedited zoning or rezoning procedures.
2. Expedited processing of plans, proposals and permits.
3. Waivers or abatement of county zoning fees, processing fees, and county improvement district fees and assessments for development activities.
4. Waiver or abatement of development standards and procedural requirements.
E. For the purposes of this section, "renewable energy equipment" has the same meaning as prescribed in section 42‑14155.
Sec. 5. Repeal
Title 11, chapter 6, articles 1 and 2, Arizona Revised Statutes, are repealed.
Sec. 6. Renumber
Title 11, chapter 6, articles 3 and 4, Arizona Revised Statutes, are renumbered as title 11, chapter 6, articles 5 and 6, respectively.
Sec. 7. Title 11, chapter 6, Arizona Revised Statutes, is amended by adding new articles 1, 2, 3 and 4, to read:
ARTICLE 1. COUNTY PLANNING
11-801. Definitions
In this chapter, unless the context otherwise requires:
1. "Area of jurisdiction" means that part of the county outside the corporate limits of any municipality.
2. "Board" means the board of supervisors.
3. "Commission" means the county planning and zoning commission.
4. "Indian reservation" means all lands that are held in trust by the United States for the exclusive use and occupancy of Indian tribes by treaty, law or executive order and that are currently recognized as Indian reservations by the United States department of the interior.
5. "Inspector" means the county zoning inspector.
6. "Newspaper of general circulation in the county seat" means a daily or weekly newspaper if any is published in the county seat.
7. "Rezoning" means a change in the zoning ordinance changing the zoning district boundaries within an area previously zoned.
8. "Zoning district" means any portion of a county in which the same set of zoning regulations applies.
9. "Zoning ordinance" means an ordinance that is adopted by the board of supervisors and that contains zoning regulations together with a map setting forth the precise boundaries of zoning districts within which the various zoning regulations are effective.
10. "Zoning regulations" means provisions that govern the use of land or buildings, or both, the height and location of buildings, the size of yards, courts and open spaces, the establishment of setback lines and such other matters as may otherwise be authorized under this chapter and that the board deems suitable and proper.
11. "Zoning regulations amendment" means a change in the zoning ordinance that modifies, adds to, transfers or repeals one or more zoning regulations or that adds one or more zoning regulations.
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 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.
11‑803. Consultants; employees; use of services by city or town
A. The board may contract with consultants for services as may be required, employ those persons and provide monies as it deems necessary to carry on the work of the commission and the enforcement of this chapter.
B. If a consultant or employees, or both, are provided to carry on county planning work as prescribed in this chapter, the regularly appointed planning and zoning commission of an incorporated city or town within the county may request the services of the consultant or employees, or both, for consultation and advice, including the preparation or review of comprehensive plans, zoning ordinances and subdivision regulations within the boundaries of the incorporated city or town. The board, if it deems it proper after consultation with the commission, may make those services available as mutually agreed to by the board, commission and the affected city or town.
11‑804. Comprehensive plan; contents
A. The commission shall formulate and the board of supervisors shall adopt or readopt a long-term comprehensive plan for the development of the area of jurisdiction in the manner prescribed by this article. The comprehensive plan, with the accompanying maps, plats, charts and descriptive matter, shall show the commission's recommendations for the development of the area of jurisdiction. The comprehensive plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the area of jurisdiction pursuant to the present and future needs of the county. The comprehensive plan shall be developed so as to conserve the natural resources of the county, to ensure efficient expenditure of public monies and to promote the health, safety, convenience and general welfare of the public. The comprehensive plan may include studies and recommendations relative to the location, character and extent of highways, railroads, bus and other transportation routes, bicycle facilities, bridges, public buildings, public services, schools, parks, open space, housing quality, variety and affordability, parkways, hiking and riding trails, airports, forests, wildlife areas, dams, projects affecting conservation of natural resources, air quality, water quality and floodplain zoning. In the preparation of the comprehensive plan, the commission shall make surveys and studies of the present conditions and prospective future growth of the area of the jurisdiction. The comprehensive plan shall be a public record, but its purpose and effect shall be primarily as an aid to the county planning and zoning commission and to the board of supervisors in the performance of their duties. The comprehensive plan shall include provisions that identify changes or modifications that constitute amendments and major amendments to the plan.
B. In addition to the other matters that are required or authorized under this section and this article, for counties with a population of more than one hundred twenty-five thousand persons, the comprehensive plan shall include, and for other counties the comprehensive plan may include:
1. Planning for land use that designates the proposed general distribution and location and extent of uses of the land for housing, business, industry, agriculture, recreation, education, public buildings and grounds, open space and other categories of public and private uses of land appropriate to the county. The land use plan shall include:
(a) A statement of the standards of population density and building intensity recommended for the various land use categories covered by the plan.
(b) Specific programs and policies that the county may use to promote compact form development activity and locations where those development patterns should be encouraged.
(c) Consideration of air quality and access to incident solar energy for all general categories of land use.
(d) Policies that address maintaining a broad variety of land uses including the range of uses existing in the county at the time the plan is adopted, readopted or amended.
2. Planning for circulation consisting of the general location and extent of existing and proposed freeways, arterial and collector streets, bicycle routes and any other modes of transportation as may be appropriate, all correlated with the land use plan under paragraph 1 of this subsection.
3. Planning for water resources that addresses:
(a) The known legally and physically available surface water, groundwater and effluent supplies.
(b) The demand for water that will result from future growth projected in the comprehensive plan, added to existing uses.
(c) An analysis of how the demand for water that will result from future growth projected in the comprehensive plan will be served by the water supplies identified in subdivision (a) of this paragraph or a plan to obtain additional necessary water supplies.
4. Planning for energy use that:
(a) Encourages and provides incentives for efficient use of energy.
(b) Identifies policies and practices for greater use of renewable energy.
C. In addition to the other matters that are required or authorized under this section and this article, for counties with a population of more than two hundred thousand persons, the comprehensive plan shall include, and for other counties the comprehensive plan may include:
1. Planning for open space acquisition and preservation. The open space plan shall include:
(a) A comprehensive inventory of open space areas, recreational resources and designations of access points to open space areas and resources.
(b) An analysis of forecasted needs, policies for managing and protecting open space areas and resources and implementation strategies to acquire additional open space areas and further establish recreational resources.
(c) Policies and implementation strategies designed to promote a regional system of integrated open space and recreational resources and a consideration of any existing regional open space plan.
2. Planning for growth areas, specifically identifying those areas, if any, that are particularly suitable for planned multimodal transportation and infrastructure expansion and improvements designed to support a planned concentration of a variety of uses, such as residential, office, commercial, tourism and industrial uses. The mixed use planning shall include policies and implementation strategies that are designed to:
(a) Make automobile, transit and other multimodal circulation more efficient, make infrastructure expansion more economical and provide for a rational pattern of land development.
(b) Conserve significant natural resources and open areas in the growth area and coordinate their location to similar areas outside the growth area's boundaries.
(c) Promote the public and private construction of timely and financially sound infrastructure expansion through the use of infrastructure funding and financing planning that is coordinated with development activity.
3. An environmental planning element that contains analyses, policies and strategies to address anticipated effects, if any, of plan elements on air quality, water quality and natural resources associated with proposed development under the comprehensive plan. The policies and strategies to be developed under this element shall be designed to have countywide applicability and shall not require the production of an additional environmental impact statement or similar analysis beyond the requirements of state and federal law.
4. A cost of development element that identifies policies and strategies that the county will use to require development to pay its fair share toward the cost of additional public facility needs generated by new development, with appropriate exceptions when in the public interest. This element shall include:
(a) A component that identifies various mechanisms that are allowed by law and that can be used to fund and finance additional public services necessary to serve the development, including bonding, special taxing districts, development fees, in lieu fees and facility construction, dedications and privatization.
(b) A component that identifies policies to ensure that any mechanisms that are adopted by the county under this element result in a beneficial use to the development, bear a reasonable relationship to the burden imposed on the county to provide additional necessary public facilities to the development and otherwise are imposed pursuant to law.
D. The water resources element of the comprehensive plan does not require:
1. New independent hydrogeologic studies.
2. The county to be a water service provider.
E. In applying an open space element or a growth element of a comprehensive plan, a county shall not designate private or state land as open space, recreation, conservation or agriculture unless the county receives the written consent of the landowner or provides an alternative, economically viable designation in the comprehensive plan or zoning ordinance, allowing at least one residential dwelling per acre. If the landowner is the prevailing party in any action brought to enforce this subsection, a court shall award fees and other expenses to the landowner. Each county shall incorporate this subsection into its comprehensive plan and provide a process for a landowner to resolve discrepancies relating to this subsection.
F. The policies and strategies to be developed under these elements shall be designed to have regional applicability.
G. For counties with territory in the vicinity of a military airport or ancillary military facility as defined in section 28-8461, the commission shall also consider military airport or ancillary military facility operations and, on or before December 31, 2005, shall identify the boundaries of any high noise or accident potential zone as defined in section 28-8461 in its comprehensive plan for purposes of planning land uses in the high noise or accident potential zone that are compatible with the operation of the military airport or ancillary military facility pursuant to section 28-8481, subsection J.
11‑805. Comprehensive plan adoption; notice; hearing; amendment; expiration; readoption
A. The board shall adopt a comprehensive plan and subsequently amend or extend the adopted plan as provided by this article. on adoption or readoption, the plan, or any part of the plan, shall be the official guide for the development of the area of jurisdiction. Any change, amendment, extension or addition of the comprehensive plan may be made only pursuant to this chapter.
B. The board of supervisors shall:
1. Adopt written procedures to provide effective, early and continuous public participation in the development and major amendment of the comprehensive plan from all geographic, ethnic and economic areas of the county. The procedures shall provide for:
(a) The broad dissemination of proposals and alternatives.
(b) The opportunity for written comments.
(c) Public hearings after effective notice.
(d) Open discussions, communications programs and information services.
(e) Consideration of public comments.
2. Consult with, advise and provide an opportunity for official comment by public officials and agencies, municipalities, school districts, associations of governments, public land management agencies, the military airport if the county's area of jurisdiction includes territory in the vicinity of a military airport or ancillary military facility as defined in section 28-8461, other appropriate government jurisdictions, public utility companies, civic, educational, professional and other organizations, property owners and citizens generally to secure the maximum coordination of plans and to indicate properly located sites for all public purposes on the plan.
C. The commission shall confer with the state land department and the governing bodies and planning commissions of cities and towns in the county for the purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the county, of zoning districts, of urban growth and of public improvements and utilities that do not begin and terminate within the boundaries of any single city or town and that will, pursuant to the present and future needs of the county, best promote with efficiency and economy the health, safety, morals, order, convenience or general welfare of the public.
D. The commission shall coordinate the production of the comprehensive plan with the creation of the conceptual state land use plans under title 37, chapter 2, article 5.1. The commission shall cooperate with the state land department regarding integrating the conceptual state land use plans into the comprehensive plan.
E. The commission may formulate and draft the comprehensive plan as a whole, or separate parts of the plan corresponding with functional divisions of the subject matter, and, subject to the limitations of this chapter, may amend, extend or add to the comprehensive plan.
F. At least sixty days before the comprehensive plan or an element or major amendment of a comprehensive plan is noticed pursuant to subsection G of this section, the commission shall transmit the proposal to the board of supervisors and submit a copy for review and further comment to:
1. Each municipality in the county.
2. Each other county that is contiguous to the county.
3. The regional planning agency in the county.
4. The department of commerce or any other state agency that is subsequently designated as the general planning agency for this state.
5. The department of water resources for review and comment on the water resources element, if a water resources element is required.
6. If the comprehensive plan or an element or amendment of the comprehensive plan is applicable to territory in the vicinity of a military airport or ancillary military facility as defined in section 28-8461, the military airport.
7. If the comprehensive plan or an element or major amendment of the comprehensive plan is applicable to property in the high noise or accident potential zone of a military airport or ancillary military facility as defined in section 28-8461, the attorney general. For the purposes of this paragraph, "major amendment" means a substantial alteration of the county's land use mixture or balance as established in the county's existing comprehensive plan land use element for that area of the county.
8. Any person or entity that requests in writing to receive a review copy of the proposal.
G. After considering any recommendations from the review required under subsection F of this section, the commission shall hold at least one public hearing. Notice of the time and place of a hearing and availability of studies and summaries related to the hearing shall be given at least fifteen and not more than thirty calendar days before the hearing by:
1. Publication at least once in a newspaper of general circulation in the county seat.
2. Publication at least once in a newspaper of general circulation in the area to be affected, or adjacent to the area to be affected, if the area affected is other than the county seat.
3. Such other manner in addition to publication as the county may deem necessary or desirable.
H. After the commission recommends the comprehensive plan or any section of the plan, the plan shall be submitted to the board of supervisors for its consideration and official action.
I. Before the adoption, amendment or extension of the plan, the board shall hold at least one public hearing on the plan. After the board considers the commission's recommendation and any recommendations from the review required under subsection F of this section, the board shall hold at least one public hearing at which residents of the county shall be heard concerning the matters contained in the plan. At least fifteen days' notice of the hearing shall be given by one publication in a newspaper of general circulation in the county seat. The board shall consider protests and objections to the plan and may change or alter any portion of the comprehensive plan. However, before any change is made, that portion of the plan proposed to be changed shall be re-referred to the commission for its recommendation, which may be accepted or rejected by the board.
J. The board of supervisors may adopt the county comprehensive plan as a whole or by successive actions adopt separate parts of the plan. The adoption or readoption of the comprehensive plan or any amendment to the plan shall be by resolution of the board. The adoption or readoption of, or a major amendment to, the county comprehensive plan shall be approved by the affirmative vote of at least two-thirds of the members of the board. All major amendments proposed for adoption to the comprehensive plan by the board shall be presented at a single public hearing during the calendar year the proposal is made. The adoption or readoption of the comprehensive plan, and any major amendment to the comprehensive plan, shall not be enacted as an emergency measure and is subject to referendum as provided by article IV, part 1, section 1, subsection (8), Constitution of Arizona, and title 19, chapter 1, article 4. For the purposes of this section, "major amendment" means a substantial alteration of the county's land use mixture or balance as established in the county's existing comprehensive plan land use element for that area of the county. The county's comprehensive plan shall define the criteria to determine if a proposed amendment to the comprehensive plan effects a substantial alteration of the county's land use mixture or balance as established in the county's existing comprehensive plan land use element for that area of the county.
K. If the county's area of jurisdiction includes property in the high noise or accident potential zone of a military airport or ancillary military facility as defined in section 28-8461, the board shall send notice of the approval, adoption or readoption of the comprehensive plan or major amendment to the comprehensive plan to the attorney general by certified mail, return receipt requested, within three business days after the approval, adoption or readoption. If the attorney general determines the approval, adoption or readoption of the comprehensive plan or major amendment to the comprehensive plan is not in compliance with section 28-8481, subsection J, the attorney general shall notify the county by certified mail, return receipt requested, of the determination of noncompliance. The board shall receive the notice from the attorney general within twenty-five days after the notice from the board to the attorney general is mailed pursuant to this subsection. The effective date of any approval, adoption or readoption of, or major amendment to, the comprehensive plan shall be thirty days after the board's receipt of the attorney general's determination of noncompliance. Within thirty days after the receipt of a determination of noncompliance by the attorney general as prescribed by this section, the board shall reconsider any approval, adoption or readoption of, or major amendment to, the comprehensive plan that impacts property in the high noise or accident potential zone of a military airport or ancillary military facility as defined in section 28-8461. If the board 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 section 28-8481, subsection L. If the board timely sends notice pursuant to this subsection and the attorney general fails to timely notify the board of a determination of noncompliance, the comprehensive plan or major amendment to the comprehensive plan is deemed to comply with section 28-8481, subsection J. For the purposes of this subsection "major amendment" has the same meaning prescribed in subsection J of this section.
L. If the motion to adopt or readopt the plan or an amendment to the plan fails to pass, the board may reconsider the motion in any manner allowed by the board's rules of procedure, but any subsequent motion for the adoption or readoption of the plan or a major amendment to the plan must be approved by an affirmative vote of at least two-thirds of the members of the board. If the board fails to adopt or readopt the plan, the current plan remains in effect until a new plan is adopted. The board shall either reconsider the proposed plan or consider a revised plan within one year and shall continue to do so until one is adopted. All subsequent considerations of a new or revised plan must comply with the procedures prescribed by this article.
M. A county comprehensive plan, with any amendments, is effective for up to ten years from the date the plan was initially adopted or until the plan is readopted or a new plan is adopted pursuant to this subsection and becomes effective. On or before the tenth anniversary of the plan's most recent adoption, the board shall either readopt the existing plan for an additional term of up to ten years or shall adopt a new comprehensive plan as provided by this article.
11‑806. Rural planning areas; rural planning zones; formation
A. In counties with a population of less than four hundred thousand persons, the board of supervisors shall receive petitions to form a rural planning area that are signed by persons who own real property in any specific portion of the county outside the corporate boundaries of any cities and towns. Owners of a majority of the acres of real property in the proposed planning area must sign the petition. Participation in the rural planning area is voluntary, and any person may withdraw real property owned by the person from the planning area. The board of supervisors shall encourage voluntary participation in the planning area and shall aid the planning areas in providing a sound factual and policy basis for planning. The recommendations of rural planning areas shall emphasize voluntary, nonregulatory incentives for compliance and accommodation of continuing traditional rural and agricultural enterprises. Rural planning areas shall transmit their recommendations to the board of supervisors for its consideration for inclusion in the county comprehensive plan.
B. In any county with a population of less than four hundred thousand persons, any cities and towns and the county sharing a multijurisdictional area with a combined population of more than fifty thousand but less than one hundred thousand persons, according to the most recent department of economic security estimates, may voluntarily form rural planning zones to develop coordinated and comprehensive regional plans.
11‑807. Specific zoning plans; adoption; administration; contents
A. The board or commission of a county with a population of less than two million persons may prepare specific zoning plans for designated parcels of land, which shall include a text and maps of a land use plan and specific zoning, sign, street and other regulations for implementation of the county master plans. All property owners within the boundaries of the specific zoning plan shall give written consent before the plan may be established. A specific zoning plan shall not be adopted if it creates an area that is not within the plan but is completely surrounded by the plan boundaries.
B. A specific zoning plan may be adopted or amended after notice and hearings before the commission and board as provided in section 11-813. If the board adopts a specific zoning plan, it shall establish administrative rules and procedures for the application and enforcement of the plan and may assign or delegate administrative functions, powers and duties for the plan to county officers and officials.
C. A specific zoning plan shall include text, maps and illustrations specifying all of the following:
1. The distribution, location and extent of land uses, including open space.
2. The distribution, location, extent and intensity of major components of public and private transportation, sewage and solid waste disposal, drainage and other facilities necessary to provide for the land uses described in the specific zoning plan.
3. Standards by which development shall proceed and, if applicable, requirements for conservation, development and utilization of natural resources.
4. A statement of whether the specific zoning plan is consistent with the comprehensive plan required by section 11-804.
5. Any other matters necessary or desirable for implementation of the specific zoning plan.
D. All specific zoning plans adopted under this article shall be consistent with and conform to the adopted comprehensive plan.
11‑808. Infrastructure service area boundaries; notice; hearing; adoption
A. The county planning and zoning commission may prepare a plan and provide regulations determining the location of infrastructure service area boundaries consistent with the growth area element of the comprehensive plan beyond which the county may limit or prescribe conditions on publicly financed extensions of water, sewer and street improvements. The plan and regulations shall consider all elements of the comprehensive plan, including the circulation and public facilities elements. For the purposes of this subsection, publicly financed does not include special taxing district financing other than municipal or county improvement district revenues or bonds. The regulations shall also include components that:
1. Assign or delegate administrative functions, powers and duties to county officers and employees.
2. Identify the procedure for determining the initial infrastructure service area boundaries.
3. Identify the methodology and procedures for adjusting the infrastructure service area boundaries.
B. Before recommending the plan and regulations, or any part, amendment, extension or addition, to the board of supervisors, the commission shall hold at least one public hearing on the service area boundaries, after giving at least fifteen days' notice by publication in a newspaper of general circulation in the county seat and in a newspaper of general circulation in the area to be affected, if that area is other than the county seat.
C. The board of supervisors shall adopt any such plan and regulations and amendments by resolution.
ARTICLE 2. COUNTY ZONING
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.
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 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. END_STATUTE
11‑812. Restriction on regulation; exceptions; aggregate mining regulation; definitions
A. Nothing contained in any ordinance authorized by this chapter shall:
1. Affect existing uses of property or the right to its continued use or the reasonable repair or alteration of the property for the purpose for which used at the time the ordinance affecting the property takes effect.
2. Prevent, restrict or otherwise regulate 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. For the purposes of this paragraph, "mining" has the same meaning prescribed in section 27-301.
3. Prevent, restrict or otherwise regulate the use or occupation of land or improvements for agricultural composting, if the tract is five or more contiguous commercial acres. An agricultural composting operation shall notify in writing the board of supervisors and the nearest fire department of the location of the composting operation. If the nearest fire department is located in a city, town or fire district where the agricultural composting is not located, the agricultural composting operation shall also notify in writing the fire district in which the operation is located. Agricultural composting is subject to sections 3-112 and 49-141. For the purposes of this paragraph, "agricultural composting" has the same meaning prescribed in section 9-462.01, subsection G.
B. A nonconforming business use within a district may expand if the expansion does not exceed one hundred per cent of the area of the original business.
C. For the purposes of subsection A, paragraph 2 of this section, mining does not include aggregate mining operations in an aggregate mining operations zoning district established pursuant to this section. The board of supervisors of any county with a population of more than two million persons shall designate and establish the boundaries of an aggregate mining operations zoning district on the petition of at least one hundred persons who reside within one-half mile of an existing aggregate mining operation. In addition, the board of supervisors of any county may establish, in its discretion and on the board's initiative, one or more aggregate mining operations zoning districts. Aggregate mining operations zoning districts may only be located in areas that are inventoried and mapped as areas of known reserves or in areas with existing aggregate mining operations. Subject to subsections E and F of this section, a county and the state mine inspector may jointly adopt, as internal administrative regulations, reasonable aggregate mining operations zoning district standards limited to permitted uses, procedures for approval of property development plans and site development standards for dust control, height regulations, setbacks, days and hours of operation, off-street parking, screening, noise, vibration and air pollution control, signs, roadway access lanes, arterial highway protection and property reclamation for which aggregate mining operations are not otherwise subject to federal, state or local regulation or a governmental contractual obligation. Regulations jointly adopted pursuant to this subsection by the county and the state mine inspector shall not prohibit the activities included in the definition of mine pursuant to section 27-301, paragraph 8 or duplicate, conflict with or be more stringent than applicable federal, state or local laws.
D. The board of supervisors of any county that establishes an aggregate mining operations zoning district shall appoint an aggregate mining operations recommendation committee for the district. The committee consists of not more than seven operators, or representatives of operators, of active aggregate mining operations in any district within the county and an equal number of private citizens, who are not operators, who are not employed by operators and who do not represent operators, residing within three miles of the boundaries of aggregate mining operations or a proposed aggregate mining operation in the district for which the committee is established. The initial members appointed to the committee shall be deemed the primary members, and the board of supervisors shall appoint no more than five alternate members who represent operators and shall appoint no more than five alternate members who are private citizens. Alternate members may serve at meetings of the committee when a primary member is unable to attend. An aggregate mining operator may serve on more than one committee in the same county. The board of supervisors shall determine the length of terms of members of the committee and shall stagger the initial appointments so that not all members' terms expire at the same time. Members of the committee who no longer qualify for membership as provided by this subsection are subject to removal and replacement by the board of supervisors. The committee shall elect a member who is an aggregate mining operator to serve as chairperson for the first year in which the committee is created. For each year thereafter, the chairperson shall be elected by the members of the committee with a member who is a private citizen and a member who is an aggregate mining operator serving as chairperson in alternate years. The committee is subject to the open meeting requirements of title 38, chapter 3, article 3.1.
E. Within ninety days after an aggregate mining operations recommendation committee is established, the committee shall notify all existing aggregate mining operators in the district of the application of this section and title 27, chapter 3, article 6 to the aggregate mining operation. In addition, the committee shall:
1. By a majority vote of all members make recommendations to the board of supervisors for aggregate mining zoning districts and administrative regulations as provided in this section. The board of supervisors may adopt or reject the recommendations but may not make any modifications to the recommendations unless the modification is approved by a majority of the members of the recommendation committee.
2. Serve as a forum for mediation of disputes between members of the public and aggregate mining owners or operators. If the committee is unable to resolve a dispute, the committee shall transmit the matter to the state mine inspector, with written findings and recommendations, for further action.
3. Hear written complaints filed with the state mine inspector regarding alleged material deviations from approved community notices for aggregate mining operations and make written recommendations to the state mine inspector pursuant to section 27-446.
F. Any administrative regulations adopted by a board of supervisors pursuant to this section are not effective until the regulations are approved by the state mine inspector. The inspector may disapprove the administrative regulations adopted by the board of supervisors only if they duplicate, conflict with or are more stringent than applicable federal, state or local laws, rules or regulations. If the inspector disapproves the administrative regulations, the inspector must provide written reasons for the disapproval. The inspector shall not make any modification to the administrative regulations as adopted by the board of supervisors unless the modification is approved by a majority of the members of the board of supervisors.
G. A person or entity is subject to this chapter if the use or occupation of land or improvements by the person or entity consists of or includes changing, remanufacturing or treating human sewage or sludge for distribution or resale. These activities are not exempt from this chapter under subsection A, paragraph 2 of this section.
H. A county shall not require as a condition for a permit or for any approval, or otherwise cause, an owner or possessor of property to waive the right to continue an existing nonconforming outdoor advertising use or structure without acquiring the use or structure by purchase or condemnation and paying just compensation unless the county, at its option, allows the use or structure to be relocated to a comparable site in the county with the same or a similar zoning classification, or to another site in the county acceptable to both the county and the owner of the use or structure, and the use or structure is relocated to the other site. The county shall pay for relocating the outdoor advertising use or structure including the cost of removing and constructing the new use or structure that is at least the same size and height. This subsection does not apply to county rezoning of property at the request of the property owner to a more intensive zoning district.
I. For the purposes of this section:
1. "Aggregate" has the same meaning prescribed in section 27-441.
2. "Aggregate mining" has the same meaning prescribed in section 27‑441.
3. "Aggregate mining operation" means property that is owned, operated or managed by the same person for aggregate mining.
4. "Operators" means persons who are actively engaged in aggregate mining operations within the zoning district or proposed zoning district and who have given notice to the state mine inspector pursuant to section 27-303.
11‑813. Zoning ordinance; adoption; amendments; notice; hearing
A. The commission shall formulate and draft the zoning ordinance. Before recommending the zoning ordinance to the board of supervisors for adoption, 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.
B. After the commission recommends the zoning ordinance, the zoning ordinance shall be submitted to the board of supervisors for its consideration and official action. After the board considers the commission's recommendation, the board shall hold at least one public hearing at which residents of the county shall be heard concerning the zoning ordinance. At least fifteen days notice of the hearing shall be given by one publication in a newspaper of general circulation in the county seat. The board shall consider protests and objections to the zoning ordinance and may change or alter any portion of the zoning ordinance.
C. A property owner or authorized agent of a property owner desiring a zoning regulations amendment shall file an application for the amendment.
D. The commission, on its own motion, may propose a zoning regulations amendment 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 amendment.
E. 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. The following specific notice provisions also apply:
1. In proceedings involving one or more of the following proposed changes or related series of changes in the standards governing land uses, notice shall be provided in the manner prescribed by paragraph 2 of this subsection:
(a) A ten per cent or more increase or decrease in the number of square feet or units that may be developed.
(b) A ten per cent or more increase or reduction in the allowable height of buildings.
(c) An increase or reduction in the allowable number of stories of buildings.
(d) A ten per cent or more increase or decrease in setback or open space requirements.
(e) An increase or reduction in permitted uses.
2. In proceedings governed by paragraph 1 of this subsection, the county shall provide notice to real property owners pursuant to at least one of the following notification procedures:
(a) Notice shall be sent by first class mail to each real property owner, as shown on the last assessment, whose real property is directly affected by the changes.
(b) If the county issues utility bills or other mass mailings that periodically include notices or other informational or advertising materials, the county shall include notice of the changes with the utility bills or other mailings.
(c) The county shall publish the changes before the first hearing on the changes in a newspaper of general circulation in the county. The changes shall be published in a display advertisement covering not less than one‑eighth of a full page.
3. If notice is provided pursuant to paragraph 2, subdivision (b) or (c) of this subsection, the county shall also send notice by first class mail to persons who register their names and addresses with the county as being interested in receiving the notice. The county may charge a fee not to exceed five dollars per year for providing this service and may adopt procedures to implement this paragraph.
4. Notwithstanding the notice requirements prescribed in paragraph 2 of this subsection, the failure of any person or entity to receive notice does not constitute grounds for any court to invalidate the actions of a county for which the notice was given.
F. After the commission has held a public hearing, the board shall hold a public hearing on the proposed amendment at least fifteen days' notice of which shall be given by one publication in a newspaper of general circulation in the county seat. After holding the hearing, the board may adopt the amendment.
G. Notwithstanding title 19, chapter 1, article 4, a decision by the governing body that changes the zoning standards of land that is not owned by the county as prescribed in subsection E, paragraph 1 of this section 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 change 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 fewer than five supervisors.
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, a general description of the area of the proposed rezoning, 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, 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. 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, 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 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.
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 and any violation constitutes a public nuisance. Any person, firm or corporation violating an ordinance, or any part of the 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 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 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.
11‑816. Boards of adjustment; powers; appeals
A. There shall be one or more boards of adjustment 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. 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.
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.
11‑817. Transfer of development rights; definitions
A. The board of supervisors may establish procedures, methods and standards for the transfer of development rights within its jurisdiction. Any proposed transfer of all or any portion of the development rights of a sending property to a receiving property is subject to the written approval and consent of the property owners of both the sending property and the receiving property. A county may not condition a change of zone on a property owner's consent to or other participation in a proposed transfer of development rights, except that a change of zone may be required to implement a development agreement if it is voluntarily entered into by a property owner or owners with a county for the transfer of development rights concurrently with the county's approval of the change of zone. Before any transfer of development rights, a county shall adopt an ordinance providing for:
1. The establishment, execution and recordation of instruments to sever development rights transferred from the sending property and to affix the development rights to the receiving property. The instruments shall be executed by the property owners of the sending and receiving property and any lienholders.
2. The preservation of the characteristics of the sending property lending to the transfer of development rights and assurance that any of the prohibitions against particular uses or development of the sending property determined to be necessary to preserve the characteristics shall bind the property owner and every successor in interest to the property.
3. A delay before transfer of development rights to a receiving property after the severance of transferable development rights from a sending property.
4. The purchase, sale, exchange or other conveyance of transferable development rights before the rights are affixed to a receiving property.
5. Procedures for monitoring the severance, ownership and transfer of transferable development rights.
6. Appropriate public participation procedures for each type of transaction.
7. Use of development agreements as an option for implementation.
B. The resulting density or intensity of land use of the receiving property shall conform to the adopted comprehensive plan, as amended, if applicable. If a plan amendment is required before the transfer, the plan amendment shall not be considered a major plan amendment.
C. A county's area of jurisdiction includes land in a high noise or accident potential zone, in order to facilitate development in the high noise or accident potential zone that conforms to the compatible uses prescribed in section 28-8481, subsection J, the county may approve the transfer of development rights and enter into intergovernmental agreements with any city or town or other county.
D. The board of supervisors may authorize the transfer of development rights from unincorporated areas of a county to a municipality pursuant to an intergovernmental agreement.
E. for the purposes of this section:
1. "Ancillary military facility" has the same meaning prescribed in section 28-8461.
2. "Development rights" means the maximum development that would be allowed on the sending property under the adopted comprehensive plan, the specific plan, if any, or the zoning ordinance, whichever provides greater density or intensity of use or, if applicable, both, in effect on the date the county adopts an ordinance pursuant to subsection A of this section, respecting the permissible use, area, bulk or height of improvements made to one or more lots or parcels. Development rights may be calculated and allocated pursuant to factors including dwelling units, area, floor area, floor area ratio, height limitations, traffic generation or any other criteria that will quantify a value for the development rights in a manner that will carry out the objectives of this section.
3. "High noise or accident potential zone" has the same meaning prescribed in section 28-8461.
4. "Military airport" has the same meaning prescribed in section 28‑8461.
5. "Receiving property" means one or more lots or parcels within which development rights are increased under the adopted comprehensive plan, the specific plan, if any, or the zoning ordinance, whichever provides greater density or intensity of use or, if applicable, both, in effect before a transfer of development rights and an amendment to the adopted comprehensive plan, specific plan or zoning ordinance, or a rezone of the property, whichever is required to implement the increase in development rights. The receiving property shall be suitable for development that includes the transferred development rights consistent with the adopted comprehensive plan, as amended, if applicable. Receiving property does not include lots or parcels that are partially or wholly located within, or that include, a high noise or accident potential zone of a military airport or an ancillary military facility.
6. "Sending property" means one or more lots or parcels that are partially or wholly located within, or that include, a high noise or accident potential zone of a military airport or an ancillary military facility, a floodplain, natural habitat, geologic features, recreation area or parkland, or land that has unique aesthetic, architectural or historic value, that a county determines is appropriate and necessary to restrict against particular uses or future development that would impair or preclude preservation of the characteristic or characteristics of the property or to protect the public because of health or safety concerns.
7. "Transfer of development rights" means the process by which development rights from one or more sending properties are affixed to one or more receiving properties.
11‑818. Disclosure of filings; military electronics range; definition
A. A county that contains any portion of a military electronics range as delineated in the military electronics range map prepared by the state land department pursuant to section 37‑102 shall notify the office of the installation commander when an application is deemed complete by the county to do any of the following within any portion of the military electronics range:
1. Rezone the property.
2. Issue a building or other development permit, including an application for construction or installation of a publicly or privately operated utility, for the property.
3. Subdivide the property or otherwise divide the property, including any land division into five or fewer lots, whether for residential, industrial, commercial or any other use.
B. If the proposed land use change described in subsection A of this section does not require a public hearing, this subsection shall not be construed to allow or require a public hearing by the county on written comments by the installation. If the installation chooses to make official comments on the proposed land use change, those comments shall be made in writing and received by the county seven days before the first public hearing on the proposed land use change. If the installation chooses not to submit official comments, and if there is a hearing, the county shall note at the public hearing on the proposed land use change that the installation has not indicated an objection to the proposed land use change.
C. The county shall provide notice to the office of the installation commander pursuant to this section by providing a copy of the application and the relevant documentation that is necessary to adequately describe the proposed land use change as it relates to the military operations at the installation. This documentation shall include a basic outline of the procedures the county uses when processing land use change applications and deadlines for submitting official comments.
D. This section shall not be construed to allow or require a county to deny any use or occupancy permit, building permit, zoning approval or any other permit, approval or other authorization based on the existence of the military electronics range or its proximity to a parcel of real estate.
E. This section shall not be construed to require a county to meet the notification requirements of this section if the state land department has not prepared a map of the military electronics range.
F. For the purposes of this section, "military electronics range" means the geographically defined area in which electronic communication, monitoring or other devices are routinely tested as a part of the military mission of a military installation.
ARTICLE 3. COUNTY SUBDIVISION REGULATION
11-821. Subdivision regulations; subdivision reservation for public facilities and services; conditions; procedures; time limitation
A. The county board of supervisors shall regulate the subdivision of all lands within its corporate limits, except subdivisions that are regulated by municipalities.
B. The commission shall recommend to the board and the board shall adopt general regulations of uniform application governing plats and subdivisions of land within its area of jurisdiction. The regulations adopted shall secure and provide for the proper arrangement of streets or other highways in relation to existing or planned streets, highways or bicycle facilities or to the official map for adequate and convenient open spaces for traffic, utilities, drainage, access of firefighting apparatus, recreation, light and air. The board may adopt general regulations to provide for the proper arrangement of hiking and equestrian trails in relation to existing or planned streets or highways, and if adopted, the hiking and equestrian trails shall conform to the official map for adequate and convenient open spaces for traffic, utilities, drainage, access of firefighting apparatus, recreation, light and air. The general regulations may provide for modification by the commission in planned area development or specific cases where unusual topographical or other exceptional conditions may require such action. The regulations shall include provisions as to the extent to which streets and other highways shall be graded and improved and to which water, sewer or other utility mains, piping or other facilities shall be installed or provided for on the plat as a condition precedent to the approval of the final plat.
C. Boards of supervisors of counties shall prepare specifications and make orders, inspections, examinations and certificates as may be necessary to protect and complete the provisions and make them effective. The regulations shall require the posting of performance bonds, assurances or such other security as may be appropriate and necessary to ensure the installation of required street, sewer, electric and water utilities, drainage, flood control and improvements meeting established minimum standards of design and construction.
D. Before adoption of regulations by the board or any amendment as provided in this article, the commission shall hold a public hearing. The commission shall certify a copy of the regulations to the county board of supervisors, which shall hold a public hearing after notice of the time and place has been given by one publication fifteen days before the public hearing in a newspaper of general circulation in the county.
E. A board of supervisors may require by ordinance that land areas within a subdivision be reserved for parks, recreational facilities, school sites and fire stations subject to the following conditions:
1. The requirement may only be made on preliminary plats filed at least thirty days after the adoption of a comprehensive plan or amendment of the plan affecting the land area to be reserved.
2. The required reservations are in accordance with definite principles and standards adopted by the board or commission.
3. The land area reserved is of such a size and shape as to permit the remainder of the land area of the subdivision within which the reservation is located to develop in an orderly and efficient manner.
4. The land area reserved is in such multiples of streets and parcels as to permit an efficient division of the reserved area if it is not acquired within the prescribed period.
F. The public agency for whose benefit an area has been reserved has one year after recording the final subdivision plat to enter into an agreement to acquire the reserved land area. The purchase price is the fair market value of the land at the time of the filing of the preliminary subdivision plat plus the taxes against the reserved area from the date of the reservation and any other costs incurred by the subdivider in the maintenance of the reserved area, including interest cost incurred on any loan covering the reserved area.
G. If the public agency for whose benefit an area has been reserved does not exercise the reservation agreement within the one year period or an extended period mutually agreed on by the public agency and the subdivider, the reservation of the area terminates.
11‑822. Subdivision approval; platting regulations; violation; classification; easement vesting
A. No plat of a subdivision of land within the area of jurisdiction of the county shall be accepted for recording or recorded until it has been approved by the board. The approval of the board shall be endorsed in writing on the plat and shall also include specific identification and approval of the assurances, except those for hiking and equestrian trails required by this section. If a county planning and zoning commission exists, the plat may be referred to the commission for its consideration and the board may receive the recommendation of the commission. If the subdivision is comprised of subdivided land, as defined in section 32‑2101, and is within an active management area, as defined in section 45‑402, the plat shall not be approved unless it is accompanied by a certificate of assured water supply issued by the director of water resources, or unless the subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an assured water supply by the director of water resources pursuant to section 45-576 or is exempt from such a requirement pursuant to section 45‑576. The board shall note on the face of the plat that a certificate of assured water supply has been submitted with the plat or that the subdivider has obtained a commitment of water service for the proposed subdivision from a city, town or private water company designated as having an assured water supply pursuant to section 45-576.
B. The ground of refusal or approval of any plat submitted, including citation of or reference to the rule or regulation violated by the plat, shall be stated on the record of the board.
C. Approval of a plat shall not be deemed to constitute or effect an acceptance by the county for designation of any street, highway, bicycle facility or other way or open space shown on the plat into the county maintenance system except for hiking and equestrian trails that are constructed and maintained by the county. However, at the time the streets, highways, bicycle facilities or other ways are fully completed in accordance with the approved plat and written specifications made by the county board, the county shall accept the streets, highways, bicycle facilities and other ways into the county maintenance system within one year of completion.
D. Any person causing a final plat to be recorded without first submitting the plat and obtaining approval of the board is guilty of a class 2 misdemeanor. A county recorder shall not accept for recording or record any plat that has not been approved as provided by this article.
E. On recording of a plat, the fee of the streets, alleys, avenues, highways, easements, parks and other parcels of ground reserved to the use of the public vests in trust in the county for the uses and to the extent depicted on the plat, including ingress and egress easements depicted on the plat. On annexation by any city or town the fee automatically vests in the city or town.
F. For any subdivision that consists of lots, tracts or parcels, each of which is of a size as prescribed by the board of supervisors, the board may waive the requirement to prepare, submit and receive approval of a preliminary plat as a condition precedent to submitting a final plat and may waive or reduce infrastructure standards or requirements except for improved dust-controlled access and minimum drainage improvements.
11‑823. Water supply; adequacy; exemptions
A. To protect the public health and safety, the general regulations adopted by the board pursuant to section 11‑821, subsection B, if approved by unanimous vote of the board of supervisors, may provide that, except as provided in subsection C and subsection D, paragraph 1 of this section, the board shall not approve a final plat for a subdivision composed of subdivided lands, as defined in section 32-2101, located outside of an active management area, as defined in section 45-402, unless one of the following applies:
1. The director of water resources has determined that there is an adequate water supply for the subdivision pursuant to section 45-108 and the subdivider has included the report with the plat.
2. The subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an adequate water supply by the director of water resources pursuant to section 45-108.
B. If the board unanimously adopts the provision authorized by subsection A of this section:
1. The board may include in the general regulations an exemption from the provision for a subdivision that the director of water resources has determined will have an inadequate water supply because the water supply will be transported to the subdivision by motor vehicle or train if all of the following apply:
(a) The board determines that there is no feasible alternative water supply for the subdivision and that the transportation of water to the subdivision will not constitute a significant risk to the health and safety of the residents of the subdivision.
(b) If the water to be transported to the subdivision will be withdrawn or diverted in the service area of a municipal provider as defined in section 45-561, the municipal provider has consented to the withdrawal or diversion.
(c) If the water to be transported is groundwater, the transportation complies with the provisions governing the transportation of groundwater in title 45, chapter 2, article 8.
(d) The transportation of water to the subdivision meets any additional conditions imposed by the county.
2. The board shall promptly give written notice of the adoption of the provision to the director of water resources, the director of environmental quality and the state real estate commissioner. The notice shall include a certified copy of the provision and any exemptions adopted pursuant to paragraph 1 of this subsection. Water providers may be eligible to receive monies in a water supply development fund, as otherwise provided by law.
3. The board shall not rescind the provision or amend it in a manner that is inconsistent with subsection A of this section. If the board amends the provision, it shall give written notice of the amendment to the director of water resources, the director of environmental quality and the state real estate commissioner. The board may rescind an exemption adopted pursuant to paragraph 1 of this subsection. If the board rescinds the exemption, it shall give written notice of the rescission to the director of water resources, the director of environmental quality and the state real estate commissioner, and the board shall not readopt the exemption for at least five years after the rescission becomes effective.
4. If the board approves a subdivision plat pursuant to subsection A, paragraph 1 or 2 of this section, the board shall note on the face of the plat that the director of water resources has reported that the subdivision has an adequate water supply or that the subdivider has obtained a commitment of water service for the proposed subdivision from a city, town or private water company designated as having an adequate water supply pursuant to section 45-108.
5. If the board approves a subdivision plat pursuant to an exemption authorized by paragraph 1 of this subsection or granted by the director of water resources pursuant to section 45-108.02 or 45-108.03:
(a) The board shall give written notice of the approval to the director of water resources and the director of environmental quality.
(b) The board shall include on the face of the plat a statement that the director of water resources has determined that the water supply for the subdivision is inadequate and a statement describing the exemption under which the plat was approved, including a statement that the board or the director of water resources, whichever applies, has determined that the specific conditions of the exemption were met. If the director of water resources subsequently informs the board that the subdivision is being served by a water provider that has been designated by the director as having an adequate water supply pursuant to section 45-108, the board shall record in the county recorder's office a statement disclosing that fact.
C. Subsection A of this section does not apply to:
1. A proposed subdivision that the director of water resources has determined will have an inadequate water supply pursuant to section 45-108 if the director grants an exemption for the subdivision pursuant to section 45‑108.02 and the exemption has not expired or the director grants an exemption pursuant to section 45-108.03.
2. A proposed subdivision that received final plat approval from the county before the requirement for an adequate water supply became effective in the county if the plat has not been materially changed since it received the final plat approval. If changes were made to the plat after the plat received the final plat approval, the director of water resources shall determine whether the changes are material pursuant to the rules adopted by the director to implement section 45-108. If the county approves a plat pursuant to this paragraph and the director of water resources has determined that there is an inadequate water supply for the subdivision pursuant to section 45-108, the county shall note this on the face of the plat.
D. If the subdivision is composed of subdivided lands as defined in section 32-2101 outside of an active management area and the board has not adopted a provision pursuant to subsection A of this section:
1. If the director of water resources has determined that there is an adequate water supply for the subdivision pursuant to section 45-108 or if the subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an adequate water supply by the director of water resources pursuant to section 45-108, the board shall note this on the face of the plat if the plat is approved.
2. If the director of water resources has determined that there is an inadequate water supply for the subdivision pursuant to section 45-108, the board shall note this on the face of the plat if the plat is approved.
ARTICLE 4. LAND DIVISIONS; APPEALS; MORATORIUMS
11-831. Review of land divisions; definitions
A. The board of supervisors of each county may adopt ordinances and regulations pursuant to this section for staff review and approval of land divisions of five or fewer lots, parcels or fractional interests, any of which is ten acres or smaller in size. The county may not deny approval of any land division that meets the requirements of this section. If review of the request is not completed within thirty days after receiving the request, the land division is considered to be approved. At its option, the board of supervisors may submit a ballot question to the voters of the county to allow the voters to determine the application of subsections B and C to qualifying land divisions in that county.
B. An application to split a parcel of land shall be approved if:
1. The lots, parcels or fractional interests each meet the minimum applicable county zoning requirements of the applicable zoning designation.
2. The applicant provides a standard preliminary title report or other acceptable document that demonstrates legal access to the lots, parcels or fractional interests.
3. The applicant provides a statement from a licensed surveyor or engineer, or other evidence acceptable to the county, stating whether each lot, parcel or fractional interest has physical access that is traversable by a two-wheel drive passenger motor vehicle.
4. The applicant reserves the necessary and appropriate utility easements to serve each lot, parcel or fractional interest created by the land division.
C. An application to split a parcel of land that does not comply with one or more of the items listed in subsection B shall still be approved if the applicant provides an acknowledgment that is signed by the applicant and that confirms that no building or use permit will be issued by the county until the lot, parcel or fractional interest has met the requirements of subsection B. The county may grant a variance from one or more of the items listed in subsection B.
D. Any approval of a land division under this section may:
1. Include the minimum statutory requirements for legal and physical on-site access that must be met as a condition to the issuance of a building or use permit for the lots, parcels or fractional interests.
2. Identify topographic, hydrologic or other site constraints, requirements or limitations that must be addressed as conditions to the eventual issuance of a building or use permit. These constraints, requirements or limitations may be as noted by the applicant or through county staff review, but there shall be no requirement for independent studies.
E. If the requirements of subsections A through D do not apply, a county may adopt ordinances and regulations pursuant to this chapter for staff review of land divisions of five or fewer lots, parcels or fractional interests but only to determine compliance with minimum applicable county zoning requirements and legal access and may grant waivers from the county zoning and legal access requirements. The county may not deny approval of any land division that meets the requirements of this section or where the deficiencies are noticed in the deed. A county may not require a public hearing on a request to divide five or fewer lots, parcels or fractional interests. If review of the request is not completed within thirty days from receipt of the request, the land division shall be deemed approved. If no legal access is available, the legal access does not allow access by emergency vehicles or the county zoning requirements are not met, the access or zoning deficiencies shall be noticed in the deed. If a county by ordinance requires a legal access of more than twenty-four feet roadway width, the county is responsible for the improvement and maintenance of the improvement. If the legal access does not allow access to the lots, parcels or fractional interests by emergency vehicles, neither the county nor its agents or employees are liable for damages resulting from the failure of emergency vehicles to reach the lot, parcel or fractional interest.
F. It is unlawful for a person or group of persons acting in concert to attempt to avoid this section or the subdivision laws of this state by acting in concert to divide a parcel of land into six or more lots or sell or lease six or more lots by using a series of owners or conveyances. Any county where the division occurred or the state real estate department pursuant to title 32, chapter 20 may enforce this prohibition.
G. For the purposes of this section:
1. "Legal access" means a public right of vehicular ingress and egress between the lots, parcels or fractional interests being created.
2. "Minimum applicable county zoning requirements" means the minimum acreage and dimensions of the resulting lot, parcel or fractional interest as required by the county's zoning ordinance.
3. "Utility easement" means an easement of eight feet in width dedicated to the general public to install, maintain and access sewer, electric, gas and water utilities.
11‑832. Appeals of county actions; dedication or exaction; excessive reduction in property value; burden of proof; attorney fees; compliance with court decisions
A. Notwithstanding any other provision of this chapter, a property owner may appeal the following actions relating to the owner's property by a county, or an administrative agency or official of a county, in the manner prescribed by this section:
1. The requirement by a county of a dedication or exaction as a condition of granting approval for the use, improvement or development of real property. This section does not apply to a dedication or exaction that is required in a legislative act of the board of supervisors and that does not give discretion to an administrative agency or official to determine the nature or extent of the dedication or exaction.
2. The adoption or amendment of a zoning regulation by a county that creates a taking in violation of subsection I.
B. The county shall notify the property owner that the property owner has the right to appeal the county's action pursuant to this section and shall provide a description of the appeal procedure. The county shall not request the property owner to waive the right of appeal or trial de novo at any time during the consideration of the property owner's request.
C. The appeal shall be in writing and filed with or mailed to a hearing officer designated by the board of supervisors within thirty days after the final action is taken. The county shall submit a takings impact report to the hearing officer. A fee shall not be charged for filing the appeal.
D. After receipt of an appeal, the hearing officer shall schedule a time for the appeal to be heard not later than thirty days after receipt. The property owner shall be given at least ten days' notice of the time when the appeal will be heard unless the property owner agrees to a shorter time period.
E. In all proceedings under this section the county has the burden to establish that there is an essential nexus between the dedication or exaction and a legitimate governmental interest and that the proposed dedication, exaction or zoning regulation is roughly proportional to the impact of the proposed use, improvement or development or, in the case of a zoning regulation, that the zoning regulation does not create a taking of property in violation of subsection I. If more than a single parcel is involved, this requirement applies to the entire property.
F. The hearing officer shall decide the appeal within five working days after the appeal is heard. If the county does not meet its burden under subsection E, the hearing officer shall:
1. Modify or delete the requirement of the dedication or exaction appealed under subsection A, paragraph 1.
2. In the case of a zoning regulation appealed under subsection A, paragraph 2, the hearing officer shall transmit a recommendation to the board of supervisors.
G. If the hearing officer modifies or affirms the requirement of the dedication, exaction or zoning regulation, a property owner aggrieved by a decision of the hearing officer, at any time within thirty days after the hearing officer has rendered a decision, may file a complaint for a trial de novo in the superior court on the facts and the law regarding the issues of the condition or requirement of the dedication, exaction or zoning regulation. Pursuant to the standards for granting preliminary injunctions, the court may exercise any legal or equitable interim remedies that will permit the property owner to proceed with the use, enjoyment and development of the real property but that will not render moot any decision upholding the dedication, exaction or zoning regulation.
H. All matters presented to the superior court pursuant to this section have preference on the court calendar on the same basis as condemnation matters, and the court may award reasonable attorney fees incurred in the appeal and trial pursuant to this section to the prevailing party. The court may further award damages that are deemed appropriate to compensate the property owner for direct and actual delay damages on a finding that the county acted in bad faith.
I. A county or an agency or instrumentality of a county shall comply with the United States Supreme Court cases of Dolan v. City of Tigard, 512 U.S. 374 (1994), Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), Palazzolo v. Rhode Island, 533 U.S. 606 (2001), Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 320 (2002) and Arizona and federal appellate court decisions that are binding on Arizona counties interpreting or applying those cases.
11‑833. Standards for enactment of moratorium; land development; limitations; definitions
A. A county shall not adopt a moratorium on construction or land development unless it first:
1. Provides notice to the public published once in a newspaper of general circulation in the community at least thirty days before a final public hearing to be held to consider the adoption of the moratorium.
2. Makes written findings justifying the need for the moratorium in the manner provided for in this section.
3. Holds a public hearing on the adoption of the moratorium and the findings that support the moratorium.
B. For urban land or land subject to potential urbanization, a moratorium may be justified by demonstration of a need to prevent a shortage of essential public facilities that would otherwise occur during the effective period of the moratorium. This demonstration shall be based on reasonably available information and shall include at least the following findings:
1. A showing of the extent of need beyond the estimated capacity of existing essential public facilities expected to result from new land development, including identification of any essential public facilities currently operating beyond capacity and the portion of this capacity already committed to development, or in the case of water resources, a showing that, in an active management area as defined in section 45‑402, an assured water supply cannot be provided, or outside an active management area, a sufficient water supply cannot be provided, to the new land development, including identification of current water resources and the portion already committed to development.
2. That the moratorium is reasonably limited to those areas of the county where a shortage of essential public facilities would otherwise occur and on property that has not received development approvals based on the sufficiency of existing essential public facilities.
3. That the housing and economic development needs of the area affected have been accommodated as much as possible in any program for allocating any remaining essential public facility capacity.
C. A moratorium not based on a shortage of essential public facilities under subsection B of this section may be justified only by a demonstration of compelling need for other public facilities, including police and fire facilities. This demonstration shall be based on reasonably available information and shall include at least the following findings:
1. For urban land or land subject to potential urbanization:
(a) That application of existing development ordinances or regulations and other applicable law is inadequate to prevent irrevocable public harm from development in affected geographical areas.
(b) That the moratorium is sufficiently limited to ensure that a needed supply of affected housing types and the supply of commercial and industrial facilities within or in proximity to the county are not unreasonably restricted by the adoption of the moratorium.
(c) The reasons that alternative methods of achieving the objectives of the moratorium are unsatisfactory.
(d) That the county has determined that the public harm that would be caused by failure to impose a moratorium outweighs the adverse effects on other affected local governments, including shifts in demand for housing or economic development, public facilities and services and buildable lands and the overall impact of the moratorium on population distribution.
(e) That the city or town proposing the moratorium has developed a work plan and time schedule for achieving the objectives of the moratorium.
2. For rural land:
(a) That application of existing development ordinances or regulations and other applicable law is inadequate to prevent irrevocable public harm from development in affected geographical areas.
(b) The reasons that alternative methods of achieving the objectives of the moratorium are unsatisfactory.
(c) That the moratorium is sufficiently limited to ensure that lots or parcels outside the affected geographical areas are not unreasonably restricted by the adoption of the moratorium.
(d) That the county proposing the moratorium has developed a work plan and time schedule for achieving the objectives of the moratorium.
D. Any moratorium adopted pursuant to this section does not affect any express provision in a development agreement entered into pursuant to section 9-500.05 or as defined in section 11-1101 governing the rate, timing and sequencing of development, nor does it affect rights acquired pursuant to a protected development right granted according to chapter 9 of this title or title 9, chapter 11. Any moratorium adopted pursuant to this section shall provide a procedure pursuant to which an individual landowner may apply for a waiver of the moratorium's applicability to its property by claiming rights obtained pursuant to a development agreement, a protected development right or any vested right or by providing the public facilities that are the subject of the moratorium at the landowner's cost.
E. A moratorium adopted under subsection C, paragraph 1 of this section shall not remain in effect for more than one hundred twenty days, but such a moratorium may be extended for additional periods of time of up to one hundred twenty days if the county adopting the moratorium holds a public hearing on the proposed extension and adopts written findings that:
1. Verify the problem requiring the need for the moratorium to be extended.
2. Demonstrate that reasonable progress is being made to alleviate the problem resulting in the moratorium.
3. Set a specific duration for the renewal of the moratorium.
F. A county considering an extension of a moratorium shall provide notice to the general public published once in a newspaper of general circulation in the community at least thirty days before a final hearing is held to consider an extension of a moratorium.
G. This section does not prevent a city or town from complying with any state or federal law, regulation or order issued in writing by a legally authorized governmental entity.
H. A landowner aggrieved by a county's adoption of a moratorium pursuant to this section, at any time within thirty days after the moratorium has been adopted, may file a complaint for a trial de novo in the superior court on the facts and the law regarding the moratorium. All matters presented to the superior court pursuant to this section have preference on the court calendar on the same basis as condemnation matters. The court may award reasonable attorney fees incurred in the appeal and trial pursuant to this section to the prevailing party.
I. For the purposes of this section:
1. "Compelling need" means a clear and imminent danger to the health and safety of the public.
2. "Essential public facilities" means water, sewer and street improvements and water resources to the extent that these improvements and water resources are provided by the county or private utility.
3. "Moratorium on construction or land development" means engaging in a pattern or practice of delaying or stopping issuance of permits, authorizations or approvals necessary for the subdivision and partitioning of, or construction on, any land. It does not include denial or delay of permits or authorizations because they are inconsistent with applicable statutes, rules, zoning or other ordinances.
4. "Rural land" means all property in the unincorporated area of a county or in the incorporated area of the city or town with a population of two thousand nine hundred or less persons.
5. "Urban land or land subject to potential urbanization" means all property in the incorporated area of a city or town with a population of more than two thousand nine hundred persons.
6. "Vested right" means a right to develop property established by the expenditure of substantial sums of money pursuant to a permit or approval granted by the city, town or county.
Sec. 8. Section 11-866, Arizona Revised Statutes, is amended to read:
11-866. Penalties
A penalty clause contained in a code adopted by reference shall not be adopted by reference but shall be set forth in full in the adopting ordinance. The penalty provisions of section 11-808 11-815 may be applied by the county in enforcing the provisions of this article.
Sec. 9. Section 11-1101, Arizona Revised Statutes, is amended to read:
11-1101. Development agreements
A. A county, by resolution or ordinance, may enter into development agreements relating to property located outside the incorporated area of a city or town.
B. The development agreement shall be between the county and a landowner or any other person having an interest in real property and may specify or otherwise relate to any of the following:
1. The duration of the agreement.
2. The permitted uses of property subject to the agreement.
3. The density and intensity of uses and the maximum height and size of proposed buildings within the property.
4. Provisions for reservation or dedication of land for public purposes and provisions to protect environmentally sensitive lands.
5. Provisions for preservation and restoration of historic structures.
6. The phasing or time of construction or development on the property.
7. Conditions, terms, restrictions, financing and requirements for public infrastructure and subsequent reimbursements over time.
8. Conditions, terms, restrictions and requirements relating to the county's intent to form a special taxing district pursuant to title 48.
9. Conditions of sewer services.
10. Any other matters relating to the development of the property.
C. A development agreement shall be consistent with the county comprehensive plan adopted pursuant to chapter 6, article 2 1 of this title and applies to the property on the date the development agreement is executed.
D. A development agreement may be amended, or cancelled in whole or in part, by mutual consent of the parties to the development agreement or by their successors in interest or assigns.
E. Within ten days after a development agreement is executed, the county shall record a copy of the agreement with the county recorder, and the recordation constitutes notice of the development agreement to all persons. The burdens of the development agreement are binding on, and the benefits of the development agreement inure to, the parties to the agreement and to all of their successors in interest and assigns.
F. Section 32-2181, subsection I does not apply to development agreements under this section.
G. Notwithstanding any other law, a county may provide by resolution or ordinance for public safety purposes, and with the written consent of an owner of property that has entered into a development agreement pursuant to this section, for the application and enforcement of speed limits, vehicle weight restrictions or other safety measures on a private road that is located in any development outside the corporate boundaries of a city or town and that is open to and used by the public. The county may require payment from the property owner of the actual cost of signs for speed limits or other restrictions applicable on the private road before their installation.
Sec. 10. Section 13-1422, Arizona Revised Statutes, is amended to read:
13-1422. Adult oriented businesses; location; hours of operation; injunction; classification; definitions
A. An adult oriented business shall not be located within one-fourth mile of a child care facility, a private, public or charter school, a public playground, a public recreational facility, a residence or a place of worship. For the purposes of this subsection, measurements shall be made in a straight line in all directions, without regard to intervening structures or objects, from the nearest point on the property line of a parcel containing an adult oriented business to the nearest point on the property line of a parcel containing a child care facility, a private, public or charter school, a public playground, a public recreational facility, a residence or a place of worship. An adult oriented business lawfully operating in conformity with this section does not violate this section if a child care facility, a private, public or charter school, a public playground, a public recreational facility, a residence or a place of worship subsequently locates within one-fourth mile of the adult oriented business.
B. An adult arcade, adult bookstore or video store, adult cabaret, adult motion picture theater, adult theater, escort agency or nude model studio shall not remain open at any time between the hours of 1:00 a.m. and 8:00 a.m. on Monday through Saturday and between the hours of 1:00 a.m. and 12:00 noon on Sunday.
C. Subsection A of this section does not prohibit counties or municipalities from enacting and enforcing ordinances that regulate the location of adult oriented businesses.
D. Subsection B of this section does not prohibit counties or municipalities from enacting and enforcing ordinances that regulate an adult arcade, adult bookstore or video store, adult cabaret, adult motion picture theater, adult theater, escort agency or nude model studio in a manner that is at least as restrictive as subsection B of this section.
E. If there is reason to believe that a violation of subsection A of this section is being committed in any county or city, the county attorney of the county shall, or a citizen of this state who resides in the county or city in the citizen's own name may, maintain an action to abate and prevent the violation and to enjoin perpetually any person who is committing the violation and the owner, lessee or agent of the building or place in or on which the violation is occurring from directly or indirectly committing or permitting the violation.
F. A violation of subsection A or B of this section is a class 1 misdemeanor. Each day of violation constitutes a separate offense.
G. For the purposes of this section:
1. "Adult arcade" has the same meaning prescribed in section 11‑821 11-811.
2. "Adult bookstore or video store" has the same meaning prescribed in section 11‑821 11-811.
3. "Adult cabaret" excludes any establishment licensed under title 4 and includes any nightclub, bar, restaurant or other similar commercial establishment that regularly features:
(a) Persons who appear in a state of nudity or who are seminude.
(b) Live performances that are characterized by the exposure of specific anatomical areas or specific sexual activities.
(c) Films, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by the depiction or description of specific sexual activities or specific anatomical areas.
4. "Adult motion picture theater" has the same meaning prescribed in section 11‑821 11-811.
5. "Adult oriented business" has the same meaning prescribed in section 11‑821 11-811.
6. "Adult theater" has the same meaning prescribed in section 11‑821 11-811.
7. "Escort" means a person who for consideration agrees or offers to act as a companion, guide or date for another person or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
8. "Escort agency" means a person or business association that furnishes, offers to furnish or advertises the furnishing of escorts as one of its primary business purposes for any fee, tip or other consideration.
9. "Nude model studio" has the same meaning prescribed in section 11‑821 11-811.
10. "Nude", "nudity" or "state of nudity" has the same meaning prescribed in section 11‑821 11-811.
11. "Place of worship" means a structure where persons regularly assemble for worship, ceremonies, rituals and education relating to a particular form of religious belief and which a reasonable person would conclude is a place of worship by reason of design, signs or architectural or other features.
12. "Residence" means a permanent dwelling place.
13. "Seminude" has the same meaning prescribed in section 11‑821 11‑811.
14. "Specific anatomical areas" has the same meaning prescribed in section 11‑821 11-811.
15. "Specific sexual activities" has the same meaning prescribed in section 11‑821 11-811.
Sec. 11. Section 27-441, Arizona Revised Statutes, is amended to read:
27-441. Definitions
In this article, unless the context otherwise requires:
1. "Aggregate" means cinders, crushed rock or stone, decomposed granite, gravel, pumice, pumicite and sand.
2. "Aggregate mining" means clearing, covering or moving land using mechanized earth‑moving equipment on privately owned property for aggregate development and production purposes, including ancillary aggregate finished product activities. Aggregate mining includes an operation that mixes or recycles rock, sand, gravel or similar aggregate materials with water and cement or with asphalt. Aggregate mining does not include surveying, seismic work, exploration or maintenance activities that create a de minimis land disturbance.
3. "Aggregate mining operation" or "operation" means property that is owned, operated or managed by the same person for mining aggregate and is located in an aggregate mining operations zoning district established pursuant to section 11‑830 11-812. Property that is not contiguous but is in the same zoning district, that is owned, operated or managed by the same person and that is operated as a single aggregate mining complex is considered to be a single aggregate mining operation.
4. "Existing aggregate mining operation" means an aggregate mining operation that was in operation on or before the date the aggregate mining operations zoning district is established pursuant to section 11‑830 11-812.
5. "Major modification" means a change in an approved community notice that is one or more of the following:
(a) An increase of more than twenty acres from that stated in the currently approved community notice for the aggregate mining operation.
(b) A new and significant type of aggregate mining that has never been conducted at the aggregate mining operation site.
(c) Substantive changes to the provisions of an approved community notice required by section 27‑442, subsection C, paragraphs 4, 6, 8, 9 and 10.
6. "Minor modification" means a change in a community notice that is not a major modification.
7. "New aggregate mining operation" means an aggregate mining operation that begins operations after the date the aggregate mining operations zoning district is established pursuant to section 11‑830 11-812.
Sec. 12. Section 27-442, Arizona Revised Statutes, is amended to read:
27-442. Aggregate mining operations; community notice; application
A. An owner or operator of an aggregate mining operation shall not conduct any aggregate mining until it has an approved community notice pursuant to section 27‑445, except that an owner or operator of an existing aggregate mining operation may continue the operation if a community notice is filed as provided by subsection H of this section.
B. An owner or operator of an aggregate mining operation shall not undertake a major modification of an approved community notice until a major modification application is approved by the state mine inspector pursuant to section 27‑445.
C. The owner or operator of a new aggregate mining operation shall file an application for a community notice with the inspector containing:
1. The name and mailing address of the aggregate mining operation.
2. The name and mailing address of the owner or operator of the operation.
3. The name, mailing address and telephone number of the designated community representative or representatives for the operation.
4. A statement describing the mining activities to be conducted at the operation.
5. The amount of acreage of the operation and a map showing the location of the major process facilities.
6. Each type of major equipment to be used in the operation.
7. The approximate date when the operation will start.
8. A description and location of access routes to be used to and from the operation site during normal hours and nonemergency conditions.
9. The normal operating hours of the operation to be maintained during nonemergency conditions, unless the inspector authorizes a temporary variance from normal operating hours.
10. A description of measures the owner or operator will use to moderate, to the extent economically practicable at the site, any adverse physical effects on the residential property owners who are notified pursuant to section 27‑444.
D. An owner or operator who owns or leases the land of the operation may submit a joint application for a community notice with one or more lessees or sublessees who are also operating an aggregate mining operation on the same property. A joint application for a community notice must separately list the information required pursuant to subsection C of this section by each owner or operator of an aggregate mining operation. Owners or operators of aggregate mining operations who received approval for a joint application for a community notice may also file a joint application on that approved community notice for major and minor modifications.
E. The owner or operator may propose a major or minor modification by filing an application with the inspector containing the text of the community notice with the proposed changes noted in the text.
F. Within fourteen days after receiving an application for a community notice for a new aggregate mining operation or major modification, the inspector shall notify the applicant if the community notice application contains the information required by subsection C of this section or if the major modification application is complete pursuant to subsection E of this section. If the inspector fails to notify the applicant within fourteen days, the application is considered to be complete.
G. The owner or operator must file an application for a minor modification to an approved community notice with the state mine inspector. Minor modifications take effect on filing, unless a later effective date is designated in the application. Applications for minor modifications are not subject to sections 27‑443, 27‑444 and 27‑445.
H. For purposes of having an approved community notice, within ninety days after an aggregate mining operations zoning district is established pursuant to section 11‑830 11-812, the owner or operator of an existing aggregate mining operation must file with the state mine inspector a community notice, which is not subject to sections 27‑443 and 27‑444. The community notice shall contain all the information required by subsection C of this section, except paragraph 7, for its aggregate mining operation. Owners or operators of existing aggregate mining operations may submit a joint application for a community notice pursuant to subsection D of this section.
Sec. 13. Section 27-446, Arizona Revised Statutes, is amended to read:
27-446. Claims of deviation from an approved community notice
A. After a community notice is approved by the state mine inspector, a residential property owner who resides within one‑half mile of the boundaries of the aggregate mining operation may submit a written complaint to the designated community representative that the operation has materially deviated from the approved community notice, specifying the community notice provision that is in question and the nature of the material deviation.
B. If the aggregate mining operation does not address the complaint to the satisfaction of the residential property owner within thirty days after receiving the complaint, the notified residential property owner may file the same complaint with the inspector with a statement that the aggregate mining operation has not addressed the complaint to the property owner's satisfaction.
C. In counties that have established an aggregate mining operations recommendation committee pursuant to section 11‑830 11-812, the inspector shall request the committee to hear the complaint. The committee shall advise the inspector within thirty days in writing of its findings and recommendations regarding the complaint. The inspector shall render a decision on the complaint within thirty days after receiving the committee's recommendation. The inspector shall notify, in writing, the owner or operator of the aggregate mining operation, the complainant and the committee of the decision.
Sec. 14. Section 27-447, Arizona Revised Statutes, is amended to read:
27-447. Inspection and enforcement
A. The state mine inspector may enter and inspect any aggregate mining operation to determine compliance with an approved community notice.
B. If the inspector determines that a person is violating this article, an approved community notice or aggregate mining operations zoning district standards regulation adopted by a county and approved by the state mining inspector pursuant to section 11‑830 11-812, the inspector may issue an order requiring compliance either immediately if the violation is causing an imminent and substantial danger to the public or within a stated period of time. A compliance order must state with reasonable specificity the nature of the community notice violation, a reasonable amount of time for compliance, if applicable, and the right to a hearing. The inspector shall transmit the compliance order to the alleged violator either by certified mail, return receipt requested, or by hand delivery. At the inspector's request, the attorney general may file an action to enforce orders issued under this section after the order becomes final. The action must be filed in the superior court in the county in which the alleged violation occurred or in which the inspector maintains an office.
C. The inspector may suspend, withdraw or revoke a community notice approval if the inspector determines that the aggregate mining operation is in violation of an approved community notice. Any action taken under this subsection must comply with the requirements of title 41, chapter 6, article 10 and section 41‑1009, subsection E.
D. If the inspector has reason to believe that a person is violating this article or an approved community notice or aggregate mining operations zoning district standards regulation adopted by a county and approved by the inspector pursuant to section 11‑830 11-812 or that a person is causing an imminent and substantial danger to the public safety, the inspector, through the attorney general, may request a temporary restraining order, a preliminary injunction or any other relief necessary to protect the public safety without regard to whether the person has requested a hearing. An action filed pursuant to this subsection must be brought in the superior court in the county in which the alleged violation occurred or in which the inspector maintains an office.
Sec. 15. Section 28-6705, Arizona Revised Statutes, is amended to read:
28-6705. Public road and street maintenance
A. The board of supervisors may spend public monies for maintenance of public roads and streets other than legally designated state and county highways located without the limits of an incorporated city or town. Before spending public monies under this section, the roads or streets shall be both:
1. Laid out, opened and constructed without cost to the county.
2. Completed pursuant to a plat approved pursuant to sections 11‑802 and 11‑806.01 11-822 and in accordance with standard engineering road specifications adopted by the board of supervisors to ensure uniform compliance.
B. The board of supervisors may spend public monies for maintenance of public roads and streets laid out, constructed and opened before June 13, 1975 even if the roads and streets were not constructed in accordance with subsection A of this section.
C. Maintenance of a public road or street does not include purchasing or laying cement. To reduce long‑term maintenance costs for maintenance authorized by this section, the board of supervisors may spend monies to add rock products, gravel and processed materials to the base of the roads and streets. Petroleum based or nonpetroleum based products may be used in the maintenance and repair of unpaved roads, alleys and shoulders identified pursuant to section 9‑500.04 or 49‑474.01 or unpaved roads, alleys and shoulders in any county where the control officer as defined in section 49‑471 certifies to the board of supervisors that emissions from such roads, alleys or shoulders may endanger compliance with the national ambient air quality standard as defined in section 49‑401.01.
Sec. 16. Section 28-6713, Arizona Revised Statutes, 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 11‑806.01 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. 17. Section 28-8481, Arizona Revised Statutes, 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, 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 11‑806 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. 18. Section 32-2181, Arizona Revised Statutes, is amended to read:
32-2181. Notice to commissioner of intention to subdivide lands; unlawful acting in concert; exceptions; deed restrictions; definition
A. Before offering subdivided lands for sale or lease, the subdivider shall notify the commissioner in writing of the subdivider's intention. The notice shall contain:
1. The name and address of the owner. If the holder of any ownership interest in the land is other than an individual, such as a corporation, partnership or trust, a statement naming the type of legal entity and listing the interest and the extent of any interest of each principal in the entity. For the purposes of this section, "principal" means any person or entity having a ten per cent or more financial interest or, if the legal entity is a trust, each beneficiary of the trust holding a ten per cent or more beneficial interest.
2. The name and address of the subdivider.
3. The legal description and area of the land.
4. A true statement of the condition of the title to the land, including all encumbrances on the land, and a statement of the provisions agreed to by the holder of any blanket encumbrance enabling a purchaser to acquire title to a lot or parcel free of the lien of the blanket encumbrance on completion of all payments and performance of all of the terms and provisions required to be made or performed by the purchaser under the real estate sales contract by which the purchaser has acquired the lot or parcel. The subdivider shall file copies of documents acceptable to the department containing these provisions with the commissioner before the sale of any subdivision lot or parcel subject to a blanket encumbrance.
5. The terms and conditions on which it is intended to dispose of the land, together with copies of any real estate sales contract, conveyance, lease, assignment or other instrument intended to be used, and any other information the owner or the owner's agent or subdivider desires to present.
6. A map of the subdivision that has been filed in the office of the county recorder in the county in which the subdivision is located.
7. A brief but comprehensive statement describing the land on and the locality in which the subdivision is located.
8. A statement of the provisions that have been made for permanent access and provisions, if any, for health department approved sewage and solid waste collection and disposal and public utilities in the proposed subdivision, including water, electricity, gas and telephone facilities.
9. A statement as to the location of the nearest public common and high schools available for the attendance of school age pupils residing on the subdivision property.
10. A statement of the use or uses for which the proposed subdivision will be offered.
11. A statement of the provisions, if any, limiting the use or occupancy of the parcels in the subdivision, together with copies of any restrictive covenants affecting all or part of the subdivision.
12. The name and business address of the principal broker selling or leasing, within this state, lots or parcels in the subdivision.
13. A true statement of the approximate amount of indebtedness that is a lien on the subdivision or any part of the subdivision and that was incurred to pay for the construction of any on‑site or off‑site improvement, or any community or recreational facility.
14. A true statement or reasonable estimate, if applicable, of the amount of any indebtedness that has been or is proposed to be incurred by an existing or proposed special district, entity, taxing area or assessment district, within the boundaries of which the subdivision, or any part of the subdivision, is located, and that is to pay for the construction or installation of any improvement or to furnish community or recreational facilities to the subdivision, and which amounts are to be obtained by ad valorem tax or assessment, or by a special assessment or tax upon the subdivision or any part of the subdivision.
15. A true statement as to the approximate amount of annual taxes, special assessments or fees to be paid by the buyer for the proposed annual maintenance of common facilities in the subdivision.
16. A statement of the provisions for easements for permanent access for irrigation water where applicable.
17. A true statement of assurances for the completion of off‑site improvements, such as roads, utilities, community or recreational facilities and other improvements to be included in the offering or represented as being in the offering, and approval of the offering by the political subdivision with authority. This statement shall include a trust agreement or any other evidence of assurances for delivery of the improvements and a statement of the provisions, if any, for the continued maintenance of the improvements.
18. A true statement of the nature of any improvements to be installed by the subdivider, the estimated schedule for completion and the estimated costs related to the improvements that will be borne by purchasers of lots in the subdivision.
19. A true statement of the availability of sewage disposal facilities and other public utilities, including water, electricity, gas and telephone facilities in the subdivision, the estimated schedule for their installation, and the estimated costs related to the facilities and utilities that will be borne by purchasers of lots in the subdivision.
20. A true statement as to whether all or any portion of the subdivision is located in an open range or area in which livestock may roam at large under the laws of this state and what provisions, if any, have been made for the fencing of the subdivision to preclude livestock from roaming within the subdivided lands.
21. If the subdivider is a subsidiary corporation, a true statement identifying the parent corporation and any of the following in which the parent or any of its subsidiaries is or has been involved within the past five years:
(a) Any subdivision in this state.
(b) Any subdivision, wherever located, for which registration is required pursuant to the federal interstate land sales full disclosure act.
(c) Any subdivision, wherever located, for which registration would have been required pursuant to the federal interstate land sales full disclosure act but for the exemption for subdivisions whose lots are all twenty acres or more in size.
22. A true statement identifying all other subdivisions, designated in paragraph 21 of this subsection, in which any of the following is or, within the last five years, has been directly or indirectly involved:
(a) The holder of any ownership interest in the land.
(b) The subdivider.
(c) Any principal or officer in the holder or subdivider.
23. A true statement as to whether all or any portion of the subdivision is located in territory in the vicinity of a military airport or ancillary military facility as defined in section 28‑8461, in territory in the vicinity of a public airport as defined in section 28‑8486, on or after July 1, 2001, in a high noise or accident potential zone as defined in section 28‑8461 or on or after July 1 of the year in which the subdivision becomes located in a high noise or accident potential zone. The statement required pursuant to this paragraph does not require the amendment or refiling of any notice filed before July 1, 2001 or before July 1 of the year in which the subdivision becomes located in a high noise or accident potential zone.
24. If the subdivision is a conversion from multifamily rental to condominiums as defined in section 33‑1202, a true statement as to the following:
(a) That the property is a conversion from multifamily rental to condominiums.
(b) The date original construction was completed.
25. Other information and documents and certifications as the commissioner may reasonably require provided that the subdivider shall not be required to disclose any critical infrastructure information as defined in section 41‑1801 or any information contained in a report issued pursuant to section 41‑4273.
B. The commissioner, on application, may grant a subdivider of lots or parcels within a subdivision for which a public report was previously issued by the commissioner an exemption from all or part of the notification requirements of subsection A of this section. The subdivider shall file a statement with the commissioner indicating the change of ownership in the lots or parcels together with any material changes occurring subsequent to the original approval of the subdivision within which the lots or parcels are located. The statement shall further refer to the original approval by the commissioner.
C. If the subdivision is within an active management area, as defined in section 45‑402, the subdivider shall accompany the notice with a certificate of assured water supply issued by the director of water resources along with proof that all applicable fees have been paid pursuant to sections 48‑3772 and 48‑3774.01, unless the subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an assured water supply by the director of water resources pursuant to section 45‑576 or is exempt from the requirement pursuant to section 45‑576. If the subdivider has submitted a certificate of assured water supply to a city, town or county prior to approval of the plat by the city, town or county and this has been noted on the face of the plat, the submission constitutes compliance with this subsection if the subdivider provides proof to the commissioner that all applicable fees have been paid pursuant to sections 48‑3772 and 48‑3774.01.
D. It is unlawful for a person or group of persons acting in concert to attempt to avoid this article by acting in concert to divide a parcel of land or sell subdivision lots by using a series of owners or conveyances or by any other method that ultimately results in the division of the lands into a subdivision or the sale of subdivided land. The plan or offering is subject to this article. Unlawful acting in concert pursuant to this subsection with respect to the sale or lease of subdivision lots requires proof that the real estate licensee or other licensed professional knew or with the exercise of reasonable diligence should have known that property which the licensee listed or for which the licensee acted in any capacity as agent was subdivided land subject to this article.
E. A creation of six or more lots, parcels or fractional interests in improved or unimproved land, lots or parcels of any size is subject to this article except when:
1. Each of the lots, parcels or fractional interests represents, on a partition basis, thirty‑six acres or more in area of land located in this state, including to the centerline of dedicated roads or easements, if any, contiguous to the land in which the interests are held.
2. The lots, parcels or fractional interests are the result of a foreclosure sale, the exercise by a trustee under a deed of trust of a power of sale or the grant of a deed in lieu of foreclosure. This paragraph does not allow circumvention of the requirements of this article.
3. The lots, parcels or fractional interests are created by a valid order or decree of a court pursuant to and through compliance with title 12, chapter 8, article 7 or by operation of law. This paragraph does not allow circumvention of the requirements of this article.
4. The lots, parcels or fractional interests consist of interests in any oil, gas or mineral lease, permit, claim or right therein and such interests are regulated as securities by the United States or by this state.
5. The lots, parcels or fractional interests are registered as securities under the laws of the United States or the laws of this state or are exempt transactions under section 44‑1844, 44‑1845 or 44‑1846.
6. The commissioner by special order exempts offerings or dispositions of any lots, parcels or fractional interests from compliance with this article on written petition and on a showing satisfactory to the commissioner that compliance is not essential to the public interest or for the protection of buyers.
F. In areas outside of active management areas established pursuant to title 45, chapter 2, article 2:
1. If the subdivision is located in a county that has adopted the provision authorized by section 11‑806.01, subsection F 11-823, subsection A, or in a city or town that has enacted an ordinance pursuant to section 9‑463.01, subsection O, the subdivider shall accompany the notice with a report issued by the director of water resources pursuant to section 45‑108 stating that the subdivision has an adequate water supply, unless one of the following applies:
(a) The subdivider submitted the report to a city, town or county before approval of the plat by the city, town or county and this has been noted on the face of the plat.
(b) The subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an adequate water supply by the director of water resources pursuant to section 45‑108.
(c) The plat was approved pursuant to an exemption authorized by section 9‑463.01, subsection K, pursuant to an exemption authorized by section 11‑806.01, subsection G 11-823, subsection B, paragraph 1, pursuant to an exemption granted by the director of water resources under section 45‑108.02 and the exemption has not expired or pursuant to an exemption granted by the director under section 45‑108.03. If the plat was approved pursuant to an authorized exemption, the state real estate commissioner shall require that all promotional material and contracts for the sale of lots in the subdivision adequately display the following:
(i) The director of water resources' report or the developer's brief summary of the report as approved by the commissioner on the proposed water supply for the subdivision.
(ii) A statement describing the exemption under which the subdivision was approved, including the specific conditions of the exemption that were met. If the plat was approved by the legislative body of a city or town pursuant to an exemption authorized by section 9‑463.01, subsection K or by the board of supervisors of a county pursuant to an exemption authorized by section 11‑806.01, subsection G 11-823, subsection B, paragraph 1, the subdivider shall record the document required by section 33‑406.
(d) The subdivision received final plat approval from the city, town or county before the requirement for an adequate water supply became effective in the city, town or county, and there have been no material changes to the plat since the final plat approval. If changes were made to the plat after the final plat approval, the director of water resources shall determine whether the changes are material pursuant to the rules adopted by the director to implement section 45‑108. If this subdivision applies, the state real estate commissioner shall require that all promotional materials and contracts for the sale of lots in the subdivision adequately display the director of water resources' report or the developer's brief summary of the report as approved by the commissioner on the proposed water supply for the subdivision.
2. If the subdivision is not located in a county that has adopted the provision authorized by section 11‑806.01, subsection F 11-823, subsection A or in a city or town that has enacted an ordinance pursuant to section 9‑463.01, subsection O, and if the director of water resources, pursuant to section 45‑108, reports an inadequate on‑site supply of water to meet the needs projected by the developer or if no water is available, the state real estate commissioner shall require that all promotional material and contracts for the sale of lots in subdivisions approved by the commissioner adequately display the director of water resources' report or the developer's brief summary of the report as approved by the commissioner on the proposed water supply for the subdivision.
G. The commissioner may require the subdivider to supplement the notice of intention to subdivide lands and may require the filing of periodic reports to update the information contained in the original notice of intention to subdivide lands.
H. The commissioner may authorize the subdivider to file as the notice of intention to subdivide lands, in lieu of some or all of the requirements of subsection A of this section, a copy of the statement of record filed with respect to the subdivision pursuant to the federal interstate land sales full disclosure act if the statement complies with the requirements of the act and the regulations pertinent to the act.
I. Neither a real estate sales contract, conveyance, lease, assignment or other instrument to transfer any interest in subdivided land nor any covenant or restriction affecting real property shall contain any provision limiting the right of any party to appear or testify in support of or opposition to zoning changes, building permits or any other official acts affecting real property before a governmental body or official considering zoning changes, building permits or any other official acts affecting real property, whether the property is located within or outside of the boundaries of the subdivision. All contractual provisions that conflict with this subsection are declared to be contrary to public policy. Nothing contained in this subsection shall prohibit private restrictions on the use of any real property.
J. Before offering subdivided lands for lease or sale, the subdivider who makes any promises through any form of advertising media that the subdivided lands will be exclusively a retirement community or one that is limited to the residency of adults or senior citizens shall include the promises in the deed restrictions affecting any interest in real property within the subdivided lands.
Sec. 19. Section 32-2183, Arizona Revised Statutes, is amended to read:
32-2183. Subdivision public reports; denial of issuance; unlawful sales; voidable sale or lease; order prohibiting sale or lease; investigations; hearings; summary orders
A. Upon examination of a subdivision, the commissioner, unless there are grounds for denial, shall issue to the subdivider a public report authorizing the sale or lease in this state of the lots, parcels or fractional interests within the subdivision. The report shall contain the data obtained in accordance with section 32‑2181 and any other information which the commissioner determines is necessary to implement the purposes of this article. If any of the lots, parcels or fractional interests within the subdivision are located within territory in the vicinity of a military airport or ancillary military facility as defined in section 28‑8461, under a military training route as delineated in the military training route map prepared pursuant to section 37‑102, under restricted air space as delineated in the restricted air space map prepared pursuant to section 37‑102 or contained in the military electronics range as delineated in the military electronics range map prepared pursuant to section 37-102, the report shall include, in bold twelve point font block letters on the first page of the report, the statements required pursuant to section 28‑8484, subsection A, section 32‑2183.05 or section 32‑2183.06 and, if the department has been provided a map prepared pursuant to section 28‑8484, subsection B or section 37‑102, the report shall include a copy of the map. The military airport report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2001 or on or before December 31 of the year in which the lots, parcels or fractional interests within a subdivision become territory in the vicinity of a military airport or ancillary military facility. The military training route report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2004. The restricted air space report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2006. The military electronics range report requirements do not require the amendment or reissuance of any public report issued on or before December 31, 2008. The commissioner shall require the subdivider to reproduce the report, make the report available to each prospective customer and furnish each buyer or lessee with a copy before the buyer or lessee signs any offer to purchase or lease, taking a receipt therefor.
B. This section shall not be construed to require a public report issued sixty or fewer days prior to the filing of the military electronics range map prepared pursuant to section 37-102 to meet the military electronics range notification requirements of this section.
C. A public report issued sixty-one or more days after the filing of the military electronics range map prepared pursuant to section 37-102 shall meet all of the requirements of subsection A of this section.
D. Notwithstanding subsection A of this section, a subdivider may elect to prepare a final public report for use in the sale of improved lots as defined in section 32‑2101, as follows:
1. The subdivider shall prepare the public report and provide a copy of the report to the commissioner with the submission of the notification required by sections 32‑2181 and 32‑2184 and shall comply with all other requirements of this article.
2. An initial filing fee of five hundred dollars or an amended filing fee of two hundred fifty dollars shall accompany the notification required by paragraph 1 of this subsection.
3. The department shall assign a registration number to each notification and public report submitted pursuant to this subsection and shall maintain a database of all of these submissions. The subdivider shall place the number on each public report.
4. On receipt of the notification and public report, the department shall review and issue within ten business days either a certification that the notification and public report are administratively complete or a denial letter if it appears that the application or project is not in compliance with all legal requirements, that the applicant has a background of violations of state or federal law or that the applicant or project presents an unnecessary risk of harm to the public. If the commissioner has received the notification and public report but has not issued a certification or a denial letter within ten business days pursuant to this paragraph, the notification and public report are administratively complete.
5. A subdivider may commence sales or leasing activities as permitted under this article after obtaining a certificate of administrative completeness from the commissioner.
6. Before or after the commissioner issues a certificate of administrative completeness or, if applicable, after the notification and public report are deemed to be administratively complete pursuant to paragraph 4 of this subsection, the department may examine any public report, subdivision or applicant that has applied for or received the certificate. If the commissioner determines that the subdivider or subdivision is not in compliance with any requirement of state law or that grounds exist under this chapter to suspend, deny or revoke a public report, the commissioner may commence an administrative action under section 32‑2154 or 32‑2157. If the subdivider immediately corrects the deficiency and comes into full compliance with state law, the commissioner shall vacate any action that the commissioner may have commenced pursuant to section 32‑2154 or 32‑2157.
7. The department shall provide forms and guidelines for the submission of the notification and public report pursuant to this section.
E. The commissioner may suspend, revoke or deny issuance of a public report on any of the following grounds:
1. Failure to comply with this article or the rules of the commissioner pertaining to this article.
2. The sale or lease would constitute misrepresentation to or deceit or fraud of the purchasers or lessees.
3. Inability to deliver title or other interest contracted for.
4. Inability to demonstrate that adequate financial or other arrangements acceptable to the commissioner have been made for completion of all streets, sewers, electric, gas and water utilities, drainage and flood control facilities, community and recreational facilities and other improvements included in the offering.
5. Failure to make a showing that the lots, parcels or fractional interests can be used for the purpose for which they are offered.
6. The owner, agent, subdivider, officer, director or partner, subdivider trust beneficiary holding ten per cent or more direct or indirect beneficial interest or, if a corporation, any stockholder owning ten per cent or more of the stock in the corporation has:
(a) Been convicted of a felony or misdemeanor involving fraud or dishonesty or involving conduct of any business or a transaction in real estate, cemetery property, time‑share intervals or membership camping campgrounds or contracts.
(b) Been permanently or temporarily enjoined by order, judgment or decree from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate or cemetery property, time‑share intervals, membership camping contracts or campgrounds, or securities or involving consumer fraud or the racketeering laws of this state.
(c) Had an administrative order entered against him by a real estate regulatory agency or security regulatory agency.
(d) Had an adverse decision or judgment entered against him involving fraud or dishonesty or involving the conduct of any business or transaction in real estate, cemetery property, time‑share intervals or membership camping campgrounds or contracts.
(e) Disregarded or violated this chapter or the rules of the commissioner pertaining to this chapter.
(f) Controlled an entity to which subdivision (b), (c), (d) or (e) applies.
7. Procurement or an attempt to procure a public report by fraud, misrepresentation or deceit or by filing an application for a public report that is materially false or misleading.
8. Failure of the declaration for a condominium created pursuant to title 33, chapter 9, article 2 to comply with the requirements of section 33‑1215 or failure of the plat for the condominium to comply with the requirements of section 33‑1219. The commissioner may require an applicant for a public report to submit a notarized statement signed by the subdivider or an engineer or attorney licensed to practice in this state certifying that the condominium plat and declaration of condominium are in compliance with the requirements of sections 33‑1215 and 33‑1219. If the notarized statement is provided, the commissioner is entitled to rely on this statement.
9. Failure of any blanket encumbrance or valid supplementary agreement executed by the holder of the blanket encumbrance to contain provisions that enable the purchaser to acquire title to a lot or parcel free of the lien of the blanket encumbrance, on completion of all payments and performance of all of the terms and provisions required to be made or performed by the purchaser under the real estate sales contract by which the purchaser has acquired the lot or parcel. The subdivider shall file copies of documents acceptable to the commissioner containing these provisions with the commissioner before the sale of any subdivision lot or parcel subject to a blanket encumbrance.
10. Failure to demonstrate permanent access to the subdivision lots or parcels.
11. The use of the lots presents an unreasonable health risk.
F. It is unlawful for a subdivider to sell any lot in a subdivision unless one of the following occurs:
1. All proposed or promised subdivision improvements are completed.
2. The completion of all proposed or promised subdivision improvements is assured by financial arrangements acceptable to the commissioner. The financial arrangements may be made in phases for common community and recreation facilities required by a municipality or county as a stipulation for approval of a plan for a master planned community.
3. The municipal or county government agrees to prohibit occupancy and the subdivider agrees not to close escrow for lots in the subdivision until all proposed or promised subdivision improvements are completed.
4. The municipal or county government enters into an assurance agreement with any trustee not to convey lots until improvements are completed within the portion of the subdivision containing these lots, if the improvements can be used and maintained separately from the improvements required for the entire subdivision plat. The agreement shall be recorded in the county in which the subdivision is located.
G. If the subdivision is within an active management area, as defined in section 45‑402, the commissioner shall deny issuance of a public report or the use of any exemption pursuant to section 32‑2181.02, subsection B unless the subdivider has been issued a certificate of assured water supply by the director of water resources and has paid all applicable fees pursuant to sections 48‑3772 and 48‑3774.01, or unless the subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an assured water supply by the director of water resources pursuant to section 45‑576 or is exempt from the requirement pursuant to section 45‑576.
H. In areas outside of active management areas, if the subdivision is located in a county that has adopted the provision authorized by section 11‑806.01, subsection F 11-823, subsection A or in a city or town that has enacted an ordinance pursuant to section 9‑463.01, subsection O, the commissioner shall deny issuance of a public report or the use of any exemption pursuant to section 32‑2181.02, subsection B unless one of the following applies:
1. The director of water resources has reported pursuant to section 45‑108 that the subdivision has an adequate water supply.
2. The subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an adequate water supply by the director of water resources pursuant to section 45‑108.
3. The plat was approved pursuant to an exemption authorized by section 9‑463.01, subsection K, pursuant to an exemption authorized by section 11‑806.01, subsection G 11-823, subsection B, paragraph 1, pursuant to an exemption granted by the director of water resources under section 45‑108.02 and the exemption has not expired or pursuant to an exemption granted by the director of water resources under section 45‑108.03.
4. The subdivision received final plat approval from the city, town or county before the requirement for an adequate water supply became effective in the city, town or county, and there have been no material changes to the plat since the final plat approval. If changes were made to the plat after the final plat approval, the director of water resources shall determine whether the changes are material pursuant to the rules adopted by the director to implement section 45-108.
I. A subdivider shall not sell or lease or offer for sale or lease in this state any lots, parcels or fractional interests in a subdivision without first obtaining a public report from the commissioner except as provided in section 32‑2181.01 or 32‑2181.02. Unless exempt, the sale or lease of subdivided lands prior to issuance of the public report or failure to deliver the public report to the purchaser or lessee shall render the sale or lease rescindable by the purchaser or lessee. An action by the purchaser or lessee to rescind the transaction shall be brought within three years of the date of execution of the purchase or lease agreement by the purchaser or lessee. In any rescission action, the prevailing party is entitled to reasonable attorney fees as determined by the court.
J. Any applicant objecting to the denial of a public report, within thirty days after receipt of the order of denial, may file a written request for a hearing. The commissioner shall hold the hearing within twenty days after receipt of the request for a hearing unless the party requesting the hearing has requested a postponement. If the hearing is not held within twenty days after a request for a hearing is received, plus the period of any postponement, or if a proposed decision is not rendered within forty‑five days after submission, the order of denial shall be rescinded and a public report issued.
K. On the commissioner's own motion, or when the commissioner has received a complaint and has satisfactory evidence that the subdivider or the subdivider's agent is violating this article or the rules of the commissioner or has engaged in any unlawful practice as defined in section 44‑1522 with respect to the sale of subdivided lands or deviated from the provisions of the public report, the commissioner may investigate the subdivision project and examine the books and records of the subdivider. For the purpose of examination, the subdivider shall keep and maintain records of all sales transactions and funds received by the subdivider pursuant to the sales transactions and shall make them accessible to the commissioner upon reasonable notice and demand.
L. On the commissioner's own motion, or when the commissioner has received a complaint and has satisfactory evidence that any person has violated this article or the rules of the commissioner or has engaged in any unlawful practice as defined in section 44‑1522 with respect to the sale of subdivided lands or deviated from the provisions of the public report or special order of exemption, or has been indicted for fraud or against whom an information for fraud has been filed or has been convicted of a felony, before or after the commissioner issues the public report as provided in subsection A of this section, the commissioner may conduct an investigation of the matter, issue a summary order as provided in section 32‑2157, or hold a public hearing and, after the hearing, may issue the order or orders the commissioner deems necessary to protect the public interest and ensure compliance with the law, rules or public report or the commissioner may bring action in any court of competent jurisdiction against the person to enjoin the person from continuing the violation or engaging in or doing any act or acts in furtherance of the violation. The court may make orders or judgments, including the appointment of a receiver, necessary to prevent the use or employment by a person of any unlawful practices, or which may be necessary to restore to any person in interest any monies or property, real or personal, that may have been acquired by means of any practice in this article declared to be unlawful.
M. When it appears to the commissioner that a person has engaged in or is engaging in a practice declared to be unlawful by this article and that the person is concealing assets or self or has made arrangements to conceal assets or is about to leave the state, the commissioner may apply to the superior court, ex parte, for an order appointing a receiver of the assets of the person or for a writ of ne exeat, or both.
N. The court, on receipt of an application for the appointment of a receiver or for a writ of ne exeat, or both, shall examine the verified application of the commissioner and other evidence that the commissioner may present the court. If satisfied that the interests of the public require the appointment of a receiver or the issuance of a writ of ne exeat without notice, the court shall issue an order appointing the receiver or issue the writ, or both. If the court determines that the interests of the public will not be harmed by the giving of notice, the court shall set a time for a hearing and require notice be given as the court deems satisfactory.
O. If the court appoints a receiver without notice, the court shall further direct that a copy of the order appointing a receiver be served on the person engaged in or engaging in a practice declared to be unlawful under this article by delivering the order to the last address of the person that is on file with the state real estate department. The order shall inform the person that the person has the right to request a hearing within ten days of the date of the order and, if requested, the hearing shall be held within thirty days from the date of the order.
Sec. 20. Section 32-2197.08, Arizona Revised Statutes, is amended to read:
32-2197.08. Issuance of public report by commissioner on timeshare plan; denial of issuance; additional information; use of another state's public report
A. On examination of a timeshare plan, the commissioner, unless there are grounds for denial, shall approve for use by the developer a public report authorizing the sale or lease of the timeshare interests within the timeshare plan. For all timeshare interests sold in this state, the commissioner shall require the developer to reproduce the public report and furnish each prospective customer with a copy, taking a receipt for each copy. The public report shall be made available to each prospective purchaser in written format and may also be made available in CD‑ROM or other electronic format as approved by the commissioner. The public report shall include the following:
1. The name and principal address of the owner and developer.
2. A description of the type of timeshare interests being offered.
3. A description of the existing and proposed accommodations and amenities of the timeshare plan, including type and number, any use restrictions and any required fees for use.
4. A description of any accommodations and amenities that are committed to be built, including:
(a) The developer's schedule of commencement and completion of all accommodations and amenities.
(b) The estimated number of accommodations per site that may become subject to the timeshare plan.
5. A brief description of the duration, phases and operation of the timeshare plan.
6. The current annual budget if available or the projected annual budget for the timeshare plan. The budget shall include:
(a) A statement of the amount or a statement that there is no amount included in the budget as a reserve for repairs and replacement.
(b) The projected common expense liability, if any, by category of expenditures for the timeshare plan.
(c) A statement of any services or expenses that are not reflected in the budget and that the developer provides or pays.
7. A description of any liens, defects or encumbrances on or affecting the title to the timeshare interests.
8. A statement that by midnight of the seventh calendar day after execution of the purchase agreement a purchaser may cancel any purchase agreement for a timeshare interest from a developer together with a statement providing the name and street address where the purchaser should mail any notice of cancellation. However, if, by agreement of the parties through the purchase agreement, the purchase agreement allows for cancellation of the purchase agreement for a period of time exceeding seven calendar days, the public report shall include a statement that the cancellation of the purchase agreement is allowed for that period of time exceeding seven calendar days.
9. A description of any bankruptcies, pending suits, adjudications or disciplinary actions material to the timeshare interests of which the developer has knowledge.
10. Any restrictions on alienation of any number or portion of any timeshare interests.
11. Any current or expected fees or charges to be paid by timeshare purchasers for the use of any amenities related to the timeshare plan.
12. The extent to which financial arrangements have been provided for completion of all promised improvements.
13. If the timeshare plan provides purchasers with the opportunity to participate in any exchange programs, a description of the name and address of the exchange companies and the method by which a purchaser accesses the exchange programs.
14. Any other information that the developer, with the approval of the commissioner, desires to include in the public report.
15. If the developer is offering a multisite timeshare plan, the following information, which may be disclosed in a written, graphic or tabular form:
(a) A description of each component site, including the name and address of each component site.
(b) The number of accommodations and timeshare periods, expressed in periods of use availability, committed to the multisite timeshare plan and available for use by purchasers.
(c) Each type of accommodation in terms of the number of bedrooms, bathrooms and sleeping capacity and a statement of whether or not the accommodation contains a full kitchen. For the purposes of this subdivision, "full kitchen" means a kitchen having a minimum of a dishwasher, range, oven, sink and refrigerator.
(d) A description of amenities available for use by the purchaser at each component site.
(e) A description of the reservation system, including the following:
(i) The entity responsible for operating the reservation system.
(ii) A summary of the rules governing access to and use of the reservation system.
(iii) The existence of and an explanation regarding any priority reservation features that affect a purchaser's ability to make reservations for the use of a given accommodation on a first reserved, first served basis.
(f) A description of any right to make any additions, substitutions or deletions of accommodations or amenities and a description of the basis on which accommodations and amenities may be added to, substituted in or deleted from the multisite timeshare plan.
(g) A description of the purchaser's liability for any fees associated with the multisite timeshare plan.
(h) The location and the anticipated relative use demand of each component site in a multisite timeshare plan as well as any periodic adjustment or amendment to the reservation system that may be needed in order to respond to actual purchaser use patterns and changes in purchaser use demand for the accommodations existing at the time within the multisite timeshare plan.
(i) Any other information reasonably required by the commissioner or established by rule necessary for the protection of purchasers of timeshare interests in timeshare plans.
(j) Any other information that the developer, with the approval of the commissioner, desires to include in the public report.
16. If a developer offers a nonspecific timeshare interest in a multisite timeshare plan, the information set forth in paragraphs 1 through 14 of this subsection as to each component site.
17. Any other information that the commissioner determines or establishes by rule is necessary to implement the purpose of this article.
B. In the event of denial, suspension or revocation, grounds shall be set forth in writing at the time of denial, suspension or revocation. The commissioner may deny, suspend or revoke the public report on any of the following grounds:
1. Failure to comply with this article or the rules of the commissioner pertaining to this article.
2. The sale or lease would constitute misrepresentation to or deceit or fraud of the purchasers or lessees.
3. Inability to demonstrate that adequate financial or other arrangements acceptable to the commissioner have been made for completion of the timeshare property, installation of all streets, sewers, electric, gas and water utilities, drainage, flood control and other similar improvements included in the offering.
4. The developer, including if an entity, an officer, director, member, manager, partner, owner, trust beneficiary holding ten per cent or more beneficial interest, stockholder owning ten per cent or more of the stock or other person exercising control of the entity, has:
(a) Been convicted of a felony or misdemeanor involving theft, fraud or dishonesty or involving the conduct of any business or a transaction in real estate, cemetery property, timeshare interests or membership camping campgrounds or contracts.
(b) Been permanently or temporarily enjoined by order, judgment or decree from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate, cemetery property, timeshare interests, membership camping campgrounds or contracts, or securities or involving consumer fraud or the Arizona racketeering laws.
(c) Had an administrative order entered against him by a real estate regulatory agency or securities regulatory agency.
(d) Had an adverse decision or judgment entered against him involving fraud or dishonesty or involving the conduct of any business in or a transaction in real estate, cemetery property, timeshare interests or membership camping campgrounds or contracts.
(e) Disregarded or violated this chapter or the rules of the commissioner pertaining to this chapter.
(f) Participated in, operated or held an interest in any entity to which subdivision (b), (c), (d), or (e) of this paragraph applies.
5. If within this state, the timeshare property is incompatible with the existing neighborhood and would introduce into a neighborhood a character of property or use that would clearly be detrimental to property values in that neighborhood.
C. If the timeshare property is within an active management area, as defined in section 45‑402, the commissioner shall deny issuance of a public report unless the developer has been issued a certificate of assured water supply by the director of water resources and has paid all applicable fees pursuant to sections 48‑3772 and 48‑3774.01, or unless the developer has obtained a written commitment of water service for the timeshare property from a city, town or private water company designated as having an assured water supply by the director of water resources pursuant to section 45‑576.
D. In areas outside of active management areas, if the timeshare property is located in a county that has adopted the provision authorized by section 11‑806.01, subsection F 11-823, subsection A or in a city or town that has enacted an ordinance pursuant to section 9‑463.01, subsection O, the commissioner shall deny issuance of a public report unless one of the following applies:
1. The director of water resources has reported pursuant to section 45‑108 that the timeshare property has an adequate water supply.
2. The developer has obtained a written commitment of water service for the timeshare property from a city, town or private water company designated as having an adequate water supply by the director of water resources pursuant to section 45‑108.
3. The timeshare property was approved pursuant to an exemption authorized by section 9‑463.01, subsection K, pursuant to an exemption authorized by section 11‑806.01, subsection G 11-823, subsection B, paragraph 1, pursuant to an exemption granted by the director of water resources under section 45‑108.02 and the exemption has not expired or pursuant to an exemption granted by the director of water resources under section 45‑108.03.
4. The subdivision received final plat approval from the city, town or county before the requirement for an adequate water supply became effective in the city, town or county, and there have been no material changes to the plat since the final plat approval. If changes were made to the plat after the final plat approval, the director of water resources shall determine whether the changes are material pursuant to the rules adopted by the director to implement section 45‑108.
E. In addition to providing to each prospective customer a copy of the public report as required in subsection A of this section, the developer shall also provide to each customer before the close of any transaction information and materials that identify any timeshare exchange companies currently under contract and disclosure statements regarding the use of the timeshare exchange companies, as well as any additional information the commissioner deems appropriate.
F. The commissioner may authorize for use in this state by a developer of a timeshare plan in which all accommodations are located outside of this state a current public report that is issued by another jurisdiction or an equivalent registration and disclosure document that is required before offering a timeshare plan for sale, lease or use and that is issued by another jurisdiction. This authorization does not constitute an exemption from other applicable requirements of this article.
Sec. 21. Section 33-406, Arizona Revised Statutes, is amended to read:
33-406. Disclosure of transportation of water to property by motor vehicle or train; definition
A. Notwithstanding section 33‑411, subsection D, a subdivider who sells a lot that was included in a plat approved by the legislative body of a city or town pursuant to an exemption authorized by section 9‑463.01, subsection K or by the board of supervisors of a county pursuant to an exemption authorized by section 11‑806.01, subsection G 11-823, subsection B, paragraph 1 shall record with the plat a document that contains a legal description of the land that is subject to the subdivision plat and that contains a statement that the lots are served by a water supply that has been determined as inadequate and that the water must be hauled to the lot.
B. For the purposes of this section, "subdivider" has the same meaning as prescribed in section 32‑2101.
Sec. 22. Section 33-422, Arizona Revised Statutes, is amended to read:
33-422. Land divisions; recording; disclosure affidavit
A. A seller of five or fewer parcels of land, other than subdivided land, in an unincorporated area of a county and any subsequent seller of such a parcel shall furnish a written affidavit of disclosure to the buyer, at least seven days before the transfer of the property, and the buyer shall acknowledge receipt of the affidavit.
B. The affidavit must be written in twelve point type.
C. No release or waiver of a seller's liability arising out of any omission or misrepresentation contained in an affidavit of disclosure is valid or binding on the buyer.
D. The buyer has the right to rescind the sales transaction for a period of five days after the affidavit of disclosure is furnished to the buyer.
E. The seller shall record the executed affidavit of disclosure at the same time that the deed is recorded. The county recorder is not required to verify the accuracy of any statement in the affidavit of disclosure. A subsequently recorded affidavit supersedes any previous affidavit.
F. The affidavit of disclosure shall meet the requirements of section 11‑480 and follow substantially the following form:
When recorded mail to:
__________________________
__________________________
__________________________
__________________________
Affidavit of Disclosure
Pursuant to A.R.S. §33‑422
I, ______________________________________________ (seller(s)) being duly sworn, hereby make this affidavit of disclosure relating to the real property situated in the unincorporated area of:
_______________________, County, State of Arizona, located at:
______________________________________________________________
and legally described as:
(Legal description attached hereto as exhibit "A")
(property).
1. There ÿ is ÿ is not . . . . legal access to the property, as defined in A.R.S. § 11‑809 11-831 . . . . ÿ unknown
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
2. There ÿ is ÿ is not . . . . physical access to the property. ÿ unknown
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
3. There ÿ is ÿ is not . . . . a statement from a licensed surveyor or engineer available stating whether the property has physical access that is traversable by a two‑wheel drive passenger motor vehicle.
4. The legal and physical access to the property ÿ is ÿ is not . . . . the same....ÿ unknown ÿ not applicable.
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
If access to the parcel is not traversable by emergency vehicles, the county and emergency service providers may not be held liable for any damages resulting from the inability to traverse the access to provide needed services.
5. The road(s) is/are ÿ publicly maintained ÿ privately maintained ÿ not maintained ÿ not applicable. If applicable, there ÿ is ÿ is not . . . . a recorded road maintenance agreement.
If the roads are not publicly maintained, it is the responsibility of the property owner(s) to maintain the roads and roads that are not improved to county standards and accepted for maintenance are not the county's responsibility.
6. A portion or all of the property ÿ is ÿ is not . . . . located in a FEMA designated regulatory floodplain. If the property is in a floodplain, it may be subject to floodplain regulation.
7. The property ÿ is ÿ is not subject to ÿ fissures or ÿ expansive soils. ÿ unknown
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
8. The following services are currently provided to the property: ÿ water ÿ sewer ÿ electric ÿ natural gas ÿ single party telephone ÿ cable television services.
9. The property ÿ is ÿ is not . . . . served by a water supply that requires the transportation of water to the property.
10. The property is served by ÿ a private water company ÿ a municipal water provider ÿ a private well ÿ a shared well ÿ no well. If served by a shared well, the shared well ÿ is ÿ is not . . . . a public water system, as defined by the safe drinking water act (42 United States Code § 300f).
Notice to buyer: If the property is served by a well, a private water company or a municipal water provider the Arizona department of water resources may not have made a water supply determination. For more information about water supply, contact the water provider.
11. The property ÿ does have ÿ does not have . . . . an on‑site wastewater treatment facility (i.e., standard septic or alternative system to treat and dispose of wastewater). ÿ unknown. If applicable: a) The property ÿ will ÿ will not . . . . require installation of an on‑site wastewater treatment facility; b) The on‑site wastewater treatment facility ÿ has ÿ has not been inspected.
12. The property ÿ has been ÿ has not been . . . . subject to a percolation test. ÿ unknown.
13. The property ÿ does ÿ does not . . . . meet the minimum applicable county zoning requirements of the applicable zoning designation.
14. The sale of the property ÿ does ÿ does not . . . meet the requirements of A.R.S. § 11‑809 11-831 regarding land divisions. If those requirements are not met, the property owner may not be able to obtain a building permit. The seller or property owner shall disclose each of the deficiencies to the buyer.
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
15. The property ÿ is ÿ is not located in the clear zone of a military airport or ancillary military facility, as defined in A.R.S. § 28-8461. (Maps are available at the state real estate department's website.)
16. The property ÿ is ÿ is not located in the high noise or accident potential zone of a military airport or ancillary military facility, as defined in A.R.S. § 28‑8461. (Maps are available at the state real estate department's website.)
17. Notice: If the property is located within the territory in the vicinity of a military airport or ancillary military facility, the property is required to comply with sound attenuation standards as prescribed by A.R.S. § 28-8482. (Maps are available at the state real estate department's website.)
18. The property ÿ is ÿ is not located under military restricted airspace. ÿ unknown. (Maps are available at the state real estate department's website.)
19. The property ÿ is ÿ is not located in a military electronics range as defined in A.R.S. sections 9‑500.28 and 11-812 11‑818. ÿ unknown. (Maps are available at the state real estate department's website.)
20. Use of the property ÿ is ÿ is not limited in any way relating to an encumbrance of title due to a lis pendens, a court order or a state real estate department order or a pending legal action. If the use of the property is limited due to an encumbrance of title, the seller or property owner shall disclose the limitations to the buyer.
Explain: ____________________________________________________
______________________________________________________________
______________________________________________________________
This affidavit of disclosure supersedes any previously recorded affidavit of disclosure.
I certify under penalty of perjury that the information contained in this affidavit is true, complete and correct according to my best belief and knowledge.
Dated this (date) __ day of (year) by:
Seller's name (print): ______________ Signature: _____________
Seller's name (print): ______________ Signature: _____________
State of Arizona )
) ss.
County of ___________)
Subscribed and sworn before me this _ (date) __ day of (year) , by ____________________________________________.
__________________________
Notary public
My commission expires:
(date)
Buyer(s) hereby acknowledges receipt of a copy of this affidavit of disclosure this (date) day of (year)
Buyer's name (print): _______________ Signature: _____________
Buyer's name (print): _______________ Signature: _____________
G. For the purposes of this section, seller and subsequent seller do not include a trustee of a deed of trust who is selling property by a trustee's sale pursuant to title 33, chapter 6.1 or any officer who is selling property by execution sale pursuant to title 12, chapter 9 and title 33, chapter 6. If the seller is a trustee of a subdivision trust as defined in section 6‑801, the disclosure affidavit required by this section shall be provided by the beneficiary of the subdivision trust.
Sec. 23. Section 34-201, Arizona Revised Statutes, as amended by Laws 2009, chapter 101, section 6, is amended to read:
34-201. Notice of intention to receive bids and enter contract; procedure; doing work without advertising for bids; county compliance
A. Except as provided in subsections B through G and L of this section, every agent, on acceptance and approval of the working drawings and specifications, shall publish a notice to contractors of intention to receive bids and contract for the proposed work. This notice shall be published by advertising in a newspaper of general circulation in the county in which the agent is located for two consecutive publications if it is a weekly newspaper or for two publications that are at least six but no more than ten days apart if it is a daily newspaper. The notice shall state:
1. The nature of the work required, the type, purpose and location of the proposed building and where the plans, specifications and full information as to the proposed work may be obtained.
2. That contractors desiring to submit proposals may obtain copies of full or partial sets of plans and specifications for estimate on request or by appointment. The return of such plans and specifications shall be guaranteed by a deposit of a designated amount which shall be refunded on return of the plans and specifications in good order.
3. That every proposal shall be accompanied by a certified check, cashier's check or surety bond for ten per cent of the amount of the bid included in the proposal as a guarantee that the contractor will enter into a contract to perform the proposal in accordance with the plans and specifications. Notwithstanding any other statute, the surety bond shall be executed solely by a surety company or companies holding a certificate of authority to transact surety business in this state issued by the director of the department of insurance pursuant to title 20, chapter 2, article 1. The surety bond shall not be executed by an individual surety or sureties, even if the requirements of section 7‑101 are satisfied. The certified check, cashier's check or surety bond shall be returned to the contractors whose proposals are not accepted, and to the successful contractor on the execution of a satisfactory bond and contract as provided in this article. The conditions and provisions of the surety bid bond regarding the surety's obligations shall follow the following form:
Now, therefore, if the obligee accepts the proposal of the principal and the principal enters into a contract with the obligee in accordance with the terms of the proposal and gives the bonds and certificates of insurance as specified in the standard specifications with good and sufficient surety for the faithful performance of the contract and for the prompt payment of labor and materials furnished in the prosecution of the contract, or in the event of the failure of the principal to enter into the contract and give the bonds and certificates of insurance, if the principal pays to the obligee the difference not to exceed the penalty of the bond between the amount specified in the proposal and such larger amount for which the obligee may in good faith contract with another party to perform the work covered by the proposal then this obligation is void. Otherwise it remains in full force and effect provided, however, that this bond is executed pursuant to the provisions of section 34‑201, Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions of the section to the extent as if it were copied at length herein.
4. That the right is reserved to reject any or all proposals or to withhold the award for any reason the agent determines.
B. If the agent believes that any construction, building addition or alteration contemplated at a public institution can be advantageously done by the inmates of the public institution and regularly employed help, the agent may cause the work to be done without advertising for bids.
C. Any building, structure, addition or alteration may be constructed either with or without the use of the agent's regularly employed personnel without advertising for bids, provided that the total cost of the work, excluding materials and equipment previously acquired by bid, does not exceed:
1. In fiscal year 1994‑1995, fourteen thousand dollars.
2. In fiscal year 1995‑1996 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.
D. Notwithstanding subsection C of this section, any street, road, bridge, water or sewer work, other than a water or sewer treatment plant or building, may be constructed either with or without the use of the agent's regularly employed personnel without advertising for bids, provided that the total cost of the work does not exceed:
1. In fiscal year 1994‑1995, one hundred fifty thousand dollars.
2. In fiscal year 1995‑1996 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.
E. For the purposes of subsection D of this section, the total cost of water or sewer work does not include services provided by volunteers or donations made for the water or sewer project.
F. Notwithstanding this section, an agent may:
1. Construct, reconstruct, install or repair a natural gas or electric utility and distribution system, owned or operated by such agent, with regularly employed personnel of the agent without advertising for bids, unless otherwise prohibited by charter or ordinance.
2. Construct recreational projects, including trails, playgrounds, ballparks and other similar facilities and excluding buildings, structures, building additions and alterations to buildings, structures and building additions, with volunteer workers or workers provided by a nonprofit organization without advertising for bids for labor and materials, provided that the total cost of the work does not exceed:
(a) In fiscal year 2001‑2002, one hundred fifty thousand dollars.
(b) In fiscal year 2002‑2003 and each fiscal year thereafter, the amount provided in subdivision (a) adjusted by the annual percentage change in the GDP price deflator as defined in section 41‑563.
G. A contribution by an agent for the financing of public infrastructure made pursuant to a development agreement is exempt from this section if such contribution for any single development does not exceed:
1. In fiscal year 1994‑1995, one hundred thousand dollars.
2. In fiscal year 1995‑1996 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.
H. In addition to other state or local requirements relating to the publication of bids, each agent shall provide at least one set of all plans and specifications to any construction news reporting service that files an annual request with the agent. For the purposes of this subsection, "construction news reporting service" means a service that researches, gathers and disseminates news and reports either in print or electronically, on at least a weekly basis for building projects, construction bids, the purchasing of materials, supplies or services and other construction bidding or planned activity to the allied construction industry. The allied construction industry includes both general and specialty contractors, builders, material and service suppliers, architects and engineers, owners, developers and government agencies.
I. Any construction by a county under this section shall comply with the uniform accounting system prescribed for counties by the auditor general under section 41‑1279.21. Any construction by a city or town under this section shall comply with generally accepted accounting principles.
J. Any construction, building addition or alteration project that is financed by monies of this state or its political subdivisions shall not use endangered wood species unless an exemption is granted by the director of the department of administration. The director shall only grant an exemption if the use of endangered wood species is deemed necessary for historical restoration or to repair existing facilities and the use of any substitute material is not practical. Any lease‑purchase agreement entered into by this state or its political subdivisions for construction shall specify that no endangered wood species may be used in the construction unless an exemption is granted by the director. For the purposes of this subsection, "endangered wood species" includes those listed in appendix I of the convention on international trade in endangered species of wild flora and fauna.
K. All bonds given by a contractor and surety pursuant to this article, regardless of their actual form, will be deemed by law to be the form required and set forth in this article and no other.
L. Any building, structure, addition or alteration may be constructed without complying with this article 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 11‑806.01 11-822. For the purposes of this subsection, building does not include police, fire, school, library or other public buildings.
M. Notwithstanding section 34‑221, any agent may enter into a guaranteed energy cost savings contract with a qualified provider for the purchase of energy cost savings measures without complying with this article and may procure a guaranteed energy cost savings contract through the competitive sealed proposal process prescribed in title 41, chapter 23 or any similar competitive proposal process adopted by the agent.
Sec. 24. Section 34-201, Arizona Revised Statutes, as amended by section 23 of this act, is amended to read:
34-201. Notice of intention to receive bids and enter contract; procedure; doing work without advertising for bids; county compliance
A. Except as provided in subsections B through G and L of this section, every agent, on acceptance and approval of the working drawings and specifications, shall publish a notice to contractors of intention to receive bids and contract for the proposed work. This notice shall be published by advertising in a newspaper of general circulation in the county in which the agent is located for two consecutive publications if it is a weekly newspaper or for two publications that are at least six but no more than ten days apart if it is a daily newspaper. The notice shall state:
1. The nature of the work required, the type, purpose and location of the proposed building and where the plans, specifications and full information as to the proposed work may be obtained.
2. That contractors desiring to submit proposals may obtain copies of full or partial sets of plans and specifications for estimate on request or by appointment. The return of such plans and specifications shall be guaranteed by a deposit of a designated amount which shall be refunded on return of the plans and specifications in good order.
3. That every proposal shall be accompanied by a certified check, cashier's check or surety bond for ten per cent of the amount of the bid included in the proposal as a guarantee that the contractor will enter into a contract to perform the proposal in accordance with the plans and specifications. Notwithstanding any other statute, the surety bond shall be executed solely by a surety company or companies holding a certificate of authority to transact surety business in this state issued by the director of the department of insurance pursuant to title 20, chapter 2, article 1. The surety bond shall not be executed by an individual surety or sureties, even if the requirements of section 7‑101 are satisfied. The certified check, cashier's check or surety bond shall be returned to the contractors whose proposals are not accepted, and to the successful contractor on the execution of a satisfactory bond and contract as provided in this article. The conditions and provisions of the surety bid bond regarding the surety's obligations shall follow the following form:
Now, therefore, if the obligee accepts the proposal of the principal and the principal enters into a contract with the obligee in accordance with the terms of the proposal and gives the bonds and certificates of insurance as specified in the standard specifications with good and sufficient surety for the faithful performance of the contract and for the prompt payment of labor and materials furnished in the prosecution of the contract, or in the event of the failure of the principal to enter into the contract and give the bonds and certificates of insurance, if the principal pays to the obligee the difference not to exceed the penalty of the bond between the amount specified in the proposal and such larger amount for which the obligee may in good faith contract with another party to perform the work covered by the proposal then this obligation is void. Otherwise it remains in full force and effect provided, however, that this bond is executed pursuant to the provisions of section 34‑201, Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions of the section to the extent as if it were copied at length herein.
4. That the right is reserved to reject any or all proposals or to withhold the award for any reason the agent determines.
B. If the agent believes that any construction, building addition or alteration contemplated at a public institution can be advantageously done by the inmates of the public institution and regularly employed help, the agent may cause the work to be done without advertising for bids.
C. Any building, structure, addition or alteration may be constructed either with or without the use of the agent's regularly employed personnel without advertising for bids, provided that the total cost of the work, excluding materials and equipment previously acquired by bid, does not exceed:
1. In fiscal year 1994‑1995, fourteen thousand dollars.
2. In fiscal year 1995‑1996 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.
D. Notwithstanding subsection C of this section, any street, road, bridge, water or sewer work, other than a water or sewer treatment plant or building, may be constructed either with or without the use of the agent's regularly employed personnel without advertising for bids, provided that the total cost of the work does not exceed:
1. In fiscal year 1994‑1995, one hundred fifty thousand dollars.
2. In fiscal year 1995‑1996 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.
E. For the purposes of subsection D of this section, the total cost of water or sewer work does not include services provided by volunteers or donations made for the water or sewer project.
F. Notwithstanding this section, an agent may:
1. Construct, reconstruct, install or repair a natural gas or electric utility and distribution system, owned or operated by such agent, with regularly employed personnel of the agent without advertising for bids, unless otherwise prohibited by charter or ordinance.
2. Construct recreational projects, including trails, playgrounds, ballparks and other similar facilities and excluding buildings, structures, building additions and alterations to buildings, structures and building additions, with volunteer workers or workers provided by a nonprofit organization without advertising for bids for labor and materials, provided that the total cost of the work does not exceed:
(a) In fiscal year 2001‑2002, one hundred fifty thousand dollars.
(b) In fiscal year 2002‑2003 and each fiscal year thereafter, the amount provided in subdivision (a) adjusted by the annual percentage change in the GDP price deflator as defined in section 41‑563.
G. A contribution by an agent for the financing of public infrastructure made pursuant to a development agreement is exempt from this section if such contribution for any single development does not exceed:
1. In fiscal year 1994‑1995, one hundred thousand dollars.
2. In fiscal year 1995‑1996 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.
H. In addition to other state or local requirements relating to the publication of bids, each agent shall provide at least one set of all plans and specifications to any construction news reporting service that files an annual request with the agent. For the purposes of this subsection, "construction news reporting service" means a service that researches, gathers and disseminates news and reports either in print or electronically, on at least a weekly basis for building projects, construction bids, the purchasing of materials, supplies or services and other construction bidding or planned activity to the allied construction industry. The allied construction industry includes both general and specialty contractors, builders, material and service suppliers, architects and engineers, owners, developers and government agencies.
I. Any construction by a county under this section shall comply with the uniform accounting system prescribed for counties by the auditor general under section 41‑1279.21. Any construction by a city or town under this section shall comply with generally accepted accounting principles.
J. Any construction, building addition or alteration project that is financed by monies of this state or its political subdivisions shall not use endangered wood species unless an exemption is granted by the director of the department of administration. The director shall only grant an exemption if the use of endangered wood species is deemed necessary for historical restoration or to repair existing facilities and the use of any substitute material is not practical. Any lease‑purchase agreement entered into by this state or its political subdivisions for construction shall specify that no endangered wood species may be used in the construction unless an exemption is granted by the director. For the purposes of this subsection, "endangered wood species" includes those listed in appendix I of the convention on international trade in endangered species of wild flora and fauna.
K. All bonds given by a contractor and surety pursuant to this article, regardless of their actual form, will be deemed by law to be the form required and set forth in this article and no other.
L. Any building, structure, addition or alteration may be constructed without complying with this article 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 11-822. For the purposes of this subsection, building does not include police, fire, school, library or other public buildings.
M. Notwithstanding section 34‑221, any agent may enter into a guaranteed energy cost savings contract with a qualified provider, as those terms are defined in section 15-213.01, for the purchase of energy cost savings measures without complying with this article and may procure a guaranteed energy cost savings contract through the competitive sealed proposal process prescribed in title 41, chapter 23, article 3 or any similar competitive proposal process adopted by the agent as long as the agent follows any additional requirements set forth in section 15-213.01.
Sec. 25. Repeal
Section 34-201, Arizona Revised Statutes, as amended by Laws 2009, chapter 101, section 7, is repealed.
Sec. 26. Section 34-610, Arizona Revised Statutes, is amended to read:
34‑610. Accounting standards; statutory applicability
A. Any construction by a county pursuant to this chapter shall comply with the uniform accounting system prescribed for counties by the auditor general pursuant to section 41‑1279.21. Any construction by a city or a town pursuant to this chapter shall comply with generally accepted accounting principles.
B. Any building, structure, addition or alteration may be constructed without complying with this chapter 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 11‑806.01 11-822. For the purposes of this subsection, building does not include police, fire, school, library or other public buildings.
C. Section 34‑104, section 34‑201, subsections A through I, K and L and sections 34‑202, 34‑203, 34‑221, 34‑222, 34‑223 and 34‑224 do not apply to procurement by an agent of construction‑manager‑at‑risk construction services, design‑build construction services and job‑order‑contracting construction services.
D. Section 34‑201, subsections J and M and sections 34‑225 and 34‑226 apply to procurement by an agent of construction‑manager‑at‑risk construction services, design‑build construction services and job‑order‑contracting construction services.
Sec. 27. Section 37-132, Arizona Revised Statutes, is amended to read:
37-132. Powers and duties
A. The commissioner shall:
1. Exercise and perform all powers and duties vested in or imposed upon the department, and prescribe such rules as are necessary to discharge those duties.
2. Exercise the powers of surveyor‑general except for the powers of the surveyor‑general exercised by the treasurer as a member of the selection board pursuant to section 37‑202.
3. Make long‑range plans for the future use of state lands in cooperation with other state agencies, local planning authorities and political subdivisions.
4. Promote the infill and orderly development of state lands in areas beneficial to the trust and prevent urban sprawl or leapfrog development on state lands.
5. Classify and appraise all state lands, together with the improvements on state lands, for the purpose of sale, lease or grant of rights‑of‑way. The commissioner may impose such conditions and covenants and make such reservations in the sale of state lands as the commissioner deems to be in the best interest of the state trust. The provisions of this paragraph are subject to hearing procedures pursuant to title 41, chapter 6, article 10 and, except as provided in section 41‑1092.08, subsection H, are subject to judicial review pursuant to title 12, chapter 7, article 6.
6. Have authority to lease for grazing, agricultural, homesite or other purposes, except commercial, all land owned or held in trust by the state.
7. Have authority to lease for commercial purposes and sell all land owned or held in trust by the state, but any such lease for commercial purposes or any such sale shall first be approved by the board of appeals.
8. Except as otherwise provided, determine all disputes, grievances or other questions pertaining to the administration of state lands.
9. Appoint deputies and other assistants and employees necessary to perform the duties of the department, assign their duties, and require of them such surety bonds as the commissioner deems proper. The compensation of the deputy, assistants or employees shall be as determined pursuant to section 38‑611.
10. Make a written report to the governor annually, not later than September 1, disclosing in detail the activities of the department for the preceding fiscal year, and publish it for distribution. The report shall include an evaluation of auctions of state land leases held during the preceding fiscal year considering the advantages and disadvantages to the state trust of the existence and exercise of preferred rights to lease reclassified state land.
11. Withdraw state land from surface or subsurface sales or lease applications if the commissioner deems it to be in the best interest of the trust. This closure of state lands to new applications for sale or lease does not affect the rights which that existing lessees have under law for renewal of their leases and reimbursement for improvements.
B. The commissioner may:
1. Take evidence relating to, and may require of the various county officers information on, any matter that the commissioner has the power to investigate or determine.
2. Under such rules as the commissioner adopts, use private real estate brokers to assist in any sale or long‑term lease of state land and pay, from fees collected under section 37‑108, subsection A, paragraph 10, subdivision (a), a commission to a broker that is licensed pursuant to title 32, chapter 20 and that provides the purchaser or lessee at auction. The purchaser or lessee at auction is not eligible to receive a commission pursuant to this subsection. A commission shall not be paid on a sale or a long‑term lease if the purchaser or lessee is another governmental agency.
3. Require a permittee, lessee or grantee to post a surety bond or any form of collateral deemed sufficient by the commissioner for performance or restoration purposes. The commissioner shall use the proceeds of a bond or collateral only for the purposes determined at the time the bond or collateral is posted. For agricultural lessees, the commissioner may require collateral as follows:
(a) As security for payment of the annual assessments levied by the irrigation district in which the state land is located if the lessee has a history of late payments or defaults. The amount of the collateral required shall not exceed the annual assessment levied by the irrigation district.
(b) As security for payment of rent, if an extension of time for payment is requested or if the lessee has a history of late payments of rent. The collateral shall be submitted at the time any extension of time for payment is requested. The amount of the collateral required shall not exceed the annual amount of rent for the land.
(c) A surety bond shall be required only if the commissioner determines that other forms of collateral are insufficient.
4. Withhold market and economic analyses, preliminary engineering, site and area studies and appraisals that are collected during the urban planning process from public viewing before they are submitted to local planning and zoning authorities.
5. Withhold from public inspection proprietary information received during lease negotiations. The proprietary information shall be released to public inspection unless the release may harm the competitive position of the applicant and the information could not have been obtained by other legitimate means.
6. Issue permits for short‑term use of state land for specific purposes as prescribed by rule.
7. Contract with a third party to sell recreational permits. A third party under contract pursuant to this paragraph may assess a surcharge for its services as provided in the contract, in addition to the fees prescribed by section 37‑108.
8. Close urban lands to specific uses as prescribed by rule if necessary for dust abatement, to reduce a risk from hazardous environmental conditions that pose a risk to human health or safety or for remediation purposes.
9. Notwithstanding subsection A, paragraph 4 of this section, authorize, in the best interest of the trust, the extension of public services and facilities either:
(a) That are necessary to implement plans of the local governing body, including plans adopted or amended pursuant to section 9‑461.06 or 11‑824 11‑805.
(b) Across state lands that are either:
(i) Classified as suitable for conservation pursuant to section 37‑312.
(ii) Sold or leased at auction for conservation purposes.
C. The commissioner or any deputy or employee of the department shall not have, own or acquire, directly or indirectly, any state lands or the products on any state lands, any interest in or to such lands or products, or improvements on leased state lands, or be interested in any state irrigation project affecting state lands.
Sec. 28. Section 37-331.03, Arizona Revised Statutes, is amended to read:
37-331.03. Conceptual urban state trust land use plans; five year state trust land disposition plans; definitions
A. The commissioner shall create conceptual land use plans for all urban state trust land in this state and other state trust lands the commissioner considers to be appropriate. The commissioner shall:
1. Prioritize the creation of conceptual plans to the extent possible to:
(a) Correlate with the rate of population growth in the urban areas in this state.
(b) Coincide with the production of municipal general plans under title 9, chapter 4, article 6 and county plans under title 11, chapter 6, article 2 1.
2. Revise and update each plan at least every ten years.
3. Consult with the city, town or county in which the land is located and with any regional planning organization regarding integrating the conceptual plan into the general land use plan of the city, town or county.
4. Submit each plan, and revision of the plan, to the urban land planning oversight committee for review.
B. On approval of the conceptual land use plan by the commissioner under this section, the conceptual plan is considered to be a state general plan for purposes of this article.
C. The commissioner may create the conceptual land use plans under subsection A of this section by any of the following methods:
1. Using department staff or private consultants.
2. Entering into participation contracts pursuant to section 37‑239.
3. Issuing planning permits for urban lands pursuant to section 37‑338.
4. Entering into planning contracts for urban lands or other state trust lands the commissioner considers to be appropriate, including compensation as provided by section 37‑338, subsection D.
D. The commissioner shall create five year disposition plans for all state trust land in this state, based at a minimum on market demand, anticipated transportation and infrastructure availability. The commissioner shall:
1. Review and update each plan each year as may be necessary.
2. Consult with the city, town or county in which the land is located and with any regional planning organization.
3. Submit each plan and revision to the urban land planning oversight committee to ensure conformity with the conceptual plan under subsection A.
E. For the purposes of this section:
1. "Conceptual land use plan" means a plan that is developed for urban state trust land and other state trust lands the commissioner considers to be appropriate and that identifies:
(a) Appropriate land uses, including commercial, industrial, residential and open space uses.
(b) Transportation corridors and infrastructure requirements.
(c) All natural and artificial constraints and opportunities associated with the land.
2. "Five year disposition plan" means a plan that identifies the land projected to be sold, leased, reclassified for conservation purposes, master planned or zoned during the next five years.
Sec. 29. Section 40-360.53, Arizona Revised Statutes, is amended to read:
40-360.53. Utility facilities included in municipal and county plans
A. If a utility develops and delivers a facilities facility plan to a municipality or a county, the municipality or county, with respect to the facilities located in its corporate limits or planning area, shall include the location and nature of the planned facilities in the municipality general plan under section 9-461.05 or the county comprehensive plan under section 11-821 11-804.
B. The utility shall update each facility plan provided to a municipality or a county on a periodic basis, but at least every two years.
Sec. 30. Section 41-1512.02, Arizona Revised Statutes, is amended to read:
41-1512.02. Appropriations; purposes; exemption
A. The sum of $75,000 and 1 FTE is appropriated from the state general fund in fiscal years 2004‑2005 and 2005‑2006 and each year thereafter to the department of commerce.
B. The sum of $100,000 is appropriated from the state general fund in fiscal years 2004‑2005 and 2005‑2006 and each year thereafter to the attorney general's office for implementation of sections section 9‑461.06, 11‑806, 11‑824 title 11, chapter 6, article 1 and section 28‑8481.
C. For fiscal years 2004‑2005 and 2005‑2006 and each year thereafter, the sum of $4,825,000 is appropriated from the state general fund to the military installation fund established by, and for the purposes prescribed by, section 41‑1512.01.
D. The appropriations made in subsections A, B and C of this section are exempt from the provisions of section 35‑190 relating to lapsing of appropriations.
Sec. 31. Section 41-1519, Arizona Revised Statutes, is amended to read:
41-1519. Small community planning assistance program
Subject to legislative appropriation, the department shall establish a small community planning assistance program. The department shall provide grants and technical assistance to the following entities:
1. Any city or town with a population of more than two thousand five hundred persons but less than fifteen thousand persons for the purpose of complying with the requirements of section 9‑461.05, subsection D.
2. Any county with a population of less than one hundred thousand persons for the purpose of complying with planning requirement requirements under title 11, chapter 6, article 2 1.
Sec. 32. Section 45-108, Arizona Revised Statutes, is amended to read:
45-108. Evaluation of subdivision water supply; definition
A. In areas outside of active management areas established pursuant to chapter 2, article 2 of this title, the developer of a proposed subdivision including dry lot subdivisions, regardless of subdivided lot size, prior to recordation of the plat, shall submit plans for the water supply for the subdivision and demonstrate the adequacy of the water supply to meet the needs projected by the developer to the director. The director shall evaluate the plans and issue a report on the plans.
B. The director shall evaluate the proposed source of water for the subdivision to determine whether there is an adequate water supply for the subdivision, and shall forward a copy of the director's report to the state real estate commissioner and the city, town or county responsible for platting the subdivision.
C. The director may designate cities, towns and private water companies as having an adequate water supply by reporting that designation to the water department of the city or town or private water company and the state real estate commissioner.
D. As an alternative to designation under subsection C of this section, the director may designate a city or town that has entered into a contract with the United States secretary of the interior or a county water authority established pursuant to chapter 13 of this title for permanent supplies of Colorado river water for municipal and industrial use as having an adequate water supply if all of the following apply:
1. The city or town has entered into a contract with each private water company that serves water within the city or town to provide Colorado river water to those private water companies.
2. The Colorado river water for which the city or town has contracted is sufficient together with other water supplies available to the city or town and the private water companies that serve water within that city or town to provide an adequate supply of water for the city or town.
3. The director finds that new subdivisions within the city or town will be served primarily with Colorado river water by the city or town or one of the private water companies that serve water within that city or town.
E. The director shall not require a developer to submit plans for the water supply pursuant to subsection A of this section if either:
1. Both of the following apply:
(a) The developer has obtained a written commitment of water service from cities, towns or private water companies that have been designated as having an adequate water supply.
(b) That city, town or private water company has been designated as having an adequate water supply pursuant to subsection C of this section.
2. All of the following apply:
(a) The city or town has been designated as having an adequate water supply pursuant to subsection D of this section.
(b) The developer has obtained a written commitment of water service from the city or town or a private water company that serves water within that city or town.
(c) The developer has obtained the written concurrence of the city or town that has been designated.
F. The director may revoke a designation made pursuant to this section when the director finds that the water supply may become inadequate.
G. The state of Arizona and the director or department shall not be liable for any report, designation or evaluation prepared in good faith pursuant to this section.
H. If the director receives written notice from the board of supervisors of a county that it has adopted the provision authorized by section 11‑806.01, subsection F 11-823, subsection A, the director shall give written notice of the provision to the mayors of all cities and towns in the county. A city or town that receives the notice shall comply with section 9‑463.01, subsections J, K, L, M and N.
I. For the purposes of this section, "adequate water supply" means both of the following:
1. Sufficient groundwater, surface water or effluent of adequate quality will be continuously, legally and physically available to satisfy the water needs of the proposed use for at least one hundred years.
2. The financial capability has been demonstrated to construct the water facilities necessary to make the supply of water available for the proposed use, including a delivery system and any storage facilities or treatment works. The director may accept evidence of the construction assurances required by section 9‑463.01, 11‑806.01 11-823 or 32‑2181 to satisfy this requirement.
Sec. 33. Section 45-108.01, Arizona Revised Statutes, is amended to read:
45-108.01. Application for water report or designation of adequate water supply; notice; objections; hearing; appeals
A. On receipt of an application for a water report or an application by a city, town or private water company to be designated as having an adequate water supply under section 45‑108, if the proposed use is in a county that has adopted the provision authorized by section 11‑806.01, subsection F 11-823, subsection A or in a city or town that has enacted an ordinance pursuant to section 9‑463.01, subsection O, the director shall publish notice of the application once each week for two consecutive weeks in a newspaper of general circulation in the groundwater basin in which the applicant proposes to use water. The first publication shall occur within fifteen days after the application is determined or deemed to be administratively complete. If the application is substantially modified after notice of the application is given pursuant to this subsection, the director shall give notice of the application as modified in the manner prescribed by this subsection. The first publication of any subsequent notice shall occur within fifteen days after the modified application is determined or deemed to be administratively complete.
B. Notice pursuant to subsection a of this section shall state that written objections to the application may be filed with the director by residents and landowners within the groundwater basin within fifteen days after the last publication of notice. An objection shall state the name and mailing address of the objector and be signed by the objector, the objector's agent or the objector's attorney. The grounds for objection are limited to whether the application meets the criteria for determining an adequate water supply set forth in section 45‑108, subsection I. The objection shall clearly set forth reasons why the application does not meet the criteria.
C. In appropriate cases, including cases in which a proper written objection to the application has been filed, an administrative hearing may be held before the director's decision on the application if the director deems a hearing necessary. Thirty days before the date of the hearing, the director shall give notice of the hearing to the applicant and to any person who filed a proper written objection to the application. The hearing shall be scheduled for at least sixty days but not more than ninety days after the expiration of the time in which to file objections.
D. If the application is for a water report:
1. If the director determines that an adequate water supply exists for the proposed use, the director shall issue a water report stating that the water supply for the subdivision is adequate.
2. If the director determines that an adequate water supply does not exist, the director shall issue a water report stating that the water supply for the subdivision is inadequate.
E. If the application is for a designation of adequate water supply:
1. If the director determines that an adequate water supply exists for the proposed use, the director shall approve the application.
2. If the director determines that an adequate water supply does not exist, the director shall deny the application.
F. The applicant or a person who contested the application by filing a proper objection pursuant to subsection B of this section may seek judicial review of the final decision of the director as provided in section 45‑114, subsection B in the superior court.
G. Section 45‑114, subsections A and B govern administrative proceedings, rehearings or reviews and judicial reviews of final decisions of the director under this section. If an administrative hearing is held, it shall be conducted in the groundwater basin in which the use is located.
Sec. 34. Section 45-108.02, Arizona Revised Statutes, is amended to read:
45-108.02. Exemption from adequate water supply requirements for city, town or county based on substantial capital investment; application; criteria; expiration
A. If the director determines pursuant to section 45‑108 that an adequate water supply does not exist for a proposed subdivision and the proposed subdivision is located in a city, town or county that requires a determination of adequate water supply by the director as a condition of approval of the plat pursuant to section 9‑463.01, subsection J or O or section 11‑806.01, subsection F 11-823, subsection A, the subdivider may apply to the director for an exemption from the water adequacy requirement pursuant to this section on a form prescribed by the director within one year after the requirement first becomes effective. The director shall grant the exemption if the subdivider demonstrates to the satisfaction of the director that all of the following apply:
1. The subdivider has made substantial capital investment toward the construction of the proposed subdivision before the date the water adequacy requirement first became effective. For the purposes of this paragraph, substantial capital investment may include construction costs, site preparation costs, construction of off-site improvements and conversion or remodeling costs for existing structures, as well as planning and design costs associated with those items, but does not include the original cost of acquiring the property.
2. The subdivider was not aware of the proposed water adequacy requirement at the time the investment was made.
3. The proposed subdivision complied in all other respects with existing state laws as of the date the water adequacy requirement became effective.
B. If the director grants an exemption pursuant to subsection A of this section:
1. The exemption expires five years after the date the exemption is granted, unless before that date at least one parcel in the subdivision is sold to a bona fide purchaser or the director extends the exemption pursuant to paragraph 2 of this subsection.
2. The director may extend the period of the exemption for no more than two successive five-year periods if the subdivider applies for an extension before the exemption expires and demonstrates to the satisfaction of the director that the subdivider has made material progress in developing the subdivision, but that sales of parcels in the subdivision have been delayed for reasons outside the control of the subdivider.
C. If an exemption granted under this section expires, any public report issued for the subdivision by the state real estate commissioner pursuant to section 32‑2183 expires and the subdivider shall not sell any lots in the subdivision unless both of the following apply:
1. The subdivider files with the state real estate commissioner a new notice of intention to subdivide lands pursuant to section 32‑2181 and complies with section 32‑2181, subsection F.
2. The state real estate commissioner issues a new public report for the subdivision pursuant to section 32‑2183.
D. Section 45‑114, subsections A and B govern administrative proceedings, rehearing or review and judicial review of final decisions of the director under this section.
Sec. 35. Section 45-108.03, Arizona Revised Statutes, is amended to read:
45-108.03. Exemption from adequate water supply requirements for city, town or county based on an adequate water supply within twenty years; criteria; application
A. If a proposed subdivision is located in a city, town or county that requires an adequate water supply determination by the director as a condition of approval of the plat pursuant to section 9‑463.01, subsection J or O or section 11‑806.01, subsection F 11-823, subsection A, the subdivider may apply to the director for an exemption from the requirement pursuant to this section on a form prescribed by the director. The director shall grant the exemption if the subdivider demonstrates to the satisfaction of the director that the subdivision will be served by a water supply project to which both of the following apply:
1. The subdivider has demonstrated financial capability pursuant to section 45‑108, subsection I, but the water supply project will not be capable of serving the subdivision with sufficient water to meet its demands in a timely manner because of one of the following:
(a) The physical works for delivering water to the subdivision are not complete but are under construction and will be completed within twenty years.
(b) The subdivision will be served Colorado river water by a water provider that does not currently have the legal right to serve the water to the subdivision, but the water provider has an existing permanent contract for the Colorado river water and will have the legal right to serve the water to the subdivision within twenty years.
2. The subdivision will have an adequate water supply when the construction of the physical works is completed or the water supply is legally available to serve the subdivision, whichever applies, and the interim water supply that will serve the subdivision meets all of the criteria for an adequate water supply under section 45‑108 except that the interim water supply will not be available for one hundred years.
B. Section 45‑114, subsections A and B govern administrative proceedings, rehearing or review and judicial review of final decisions of the director under this section.
Sec. 36. Section 45-108.04, Arizona Revised Statutes, is amended to read:
45-108.04. Definition of adequate water supply; upper San Pedro water district
For the purposes of section 45‑108, if the upper San Pedro water district is established under title 48, chapter 37 for proposed uses in the district, "adequate water supply" means a water supply that complies with all of the following:
1. Sufficient groundwater, surface water or effluent of adequate quality will be continuously, legally and physically available to satisfy the water needs of the proposed use for at least one hundred years.
2. The projected water use is consistent with the goal of the district as set forth in section 48-6403, subsection B and the district's ability to meet the measurable objectives for achieving the goal as included in the district's most recent comprehensive plan, as determined by the director. If the district is established, the director shall adopt rules containing criteria for making determinations under this paragraph and shall consult with the district board in developing the rules.
3. The financial capability has been demonstrated to construct the water facilities necessary to make the supply of water available for the proposed use, including a delivery system and any storage facilities or treatment works. The director may accept evidence of the construction assurances required by section 9‑463.01, 11‑806.01 11-823 or 32‑2181 to satisfy this requirement.
Sec. 37. Section 45-576, Arizona Revised Statutes, is amended to read:
45-576. Certificate of assured water supply; designated cities, towns and private water companies; exemptions; definition
A. A person who proposes to offer subdivided lands, as defined in section 32‑2101, for sale or lease in an active management area shall apply for and obtain a certificate of assured water supply from the director prior to presenting the plat for approval to the city, town or county in which the land is located, where such is required, and prior to filing with the state real estate commissioner a notice of intention to offer such lands for sale or lease, pursuant to section 32‑2181, unless the subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an assured water supply pursuant to this section.
B. A city, town or county may approve a subdivision plat only if the subdivider has obtained a certificate of assured water supply from the director or the subdivider has obtained a written commitment of water service for the subdivision from a city, town or private water company designated as having an assured water supply pursuant to this section. The city, town or county shall note on the face of the approved plat that a certificate of assured water supply has been submitted with the plat or that the subdivider has obtained a written commitment of water service for the proposed subdivision from a city, town or private water company designated as having an assured water supply pursuant to this section.
C. The state real estate commissioner may issue a public report authorizing the sale or lease of subdivided lands only on compliance with either of the following:
1. The subdivider, owner or agent has obtained a certificate of assured water supply from the director and has paid any activation fee required under section 48‑3772, subsection A, paragraph 7 and any replenishment reserve fee required under section 48‑3774.01, subsection A, paragraph 2.
2. If the subdivider has obtained a written commitment of water service for the lands from a city, town or private water company designated as having an assured water supply pursuant to this section and the subdivider, owner or agent has paid any activation fee required under section 48‑3772, subsection A, paragraph 7.
D. The director shall designate private water companies in active management areas that have an assured water supply. If a city or town acquires a private water company that has contracted for central Arizona project water, the city or town shall assume the private water company's contract for central Arizona project water.
E. The director shall designate cities and towns in active management areas where an assured water supply exists. If a city or town has entered into a contract for central Arizona project water, the city or town is deemed to continue to have an assured water supply until December 31, 1997. Commencing on January 1, 1998, the determination that the city or town has an assured water supply is subject to review by the director and the director may determine that a city or town does not have an assured water supply.
F. The director shall notify the mayors of all cities and towns in active management areas and the chairmen of the boards of supervisors of counties in which active management areas are located of the cities, towns and private water companies designated as having an assured water supply and any modification of that designation within thirty days of the designation or modification. If the service area of the city, town or private water company has qualified as a member service area pursuant to title 48, chapter 22, article 4, the director shall also notify the conservation district of the designation or modification and shall report the projected average annual replenishment obligation for the member service area based on the projected and committed average annual demand for water within the service area during the effective term of the designation or modification subject to any limitation in an agreement between the conservation district and the city, town or private water company. For each city, town or private water company that qualified as a member service area under title 48, chapter 22 and was designated as having an assured water supply before January 1, 2004, the director shall report to the conservation district on or before January 1, 2005 the projected average annual replenishment obligation based on the projected and committed average annual demand for water within the service area during the effective term of the designation subject to any limitation in an agreement between the conservation district and the city, town or private water company. Persons proposing to offer subdivided lands served by those designated cities, towns and private water companies for sale or lease are exempt from applying for and obtaining a certificate of assured water supply.
G. This section does not apply in the case of the sale of lands for developments that are subject to a mineral extraction and processing permit or an industrial use permit pursuant to sections 45‑514 and 45‑515.
H. The director shall adopt rules to carry out the purposes of this section. On or before January 1, 2008, the rules shall provide for a reduction in water demand for an application for a designation of assured water supply or a certificate of assured water supply if a gray water reuse system will be installed that meets the requirements of the rules adopted by the department of environmental quality for gray water systems and if the application is for a certificate of assured water supply, the land for which the certificate is sought must qualify as a member land in a conservation district pursuant to title 48, chapter 22, article 4. For the purposes of this subsection, "gray water" has the same meaning prescribed in section 49‑201.
I. If the director designates a municipal provider as having an assured water supply under this section and the designation lapses or otherwise terminates while the municipal provider's service area is a member service area of a conservation district, the municipal provider or its successor shall continue to comply with the consistency with management goal requirements in the rules adopted by the director under subsection H of this section as if the designation was still in effect with respect to the municipal provider's designation uses. When determining compliance by the municipal provider or its successor with the consistency with management goal requirements in the rules, the director shall consider only water delivered by the municipal provider or its successor to the municipal provider's designation uses. A person is the successor of a municipal provider if the person commences water service to uses that were previously designation uses of the municipal provider. Any groundwater delivered by the municipal provider or its successor to the municipal provider's designation uses in excess of the amount allowed under the consistency with management goal requirements in the rules shall be considered excess groundwater for purposes of title 48, chapter 22. For the purposes of this subsection, "designation uses" means all water uses served by a municipal provider on the date the municipal provider's designation of assured water supply lapses or otherwise terminates and all recorded lots within the municipal provider's service area that were not being served by the municipal provider on that date but that received final plat approval from a city, town or county on or before that date. Designation uses do not include industrial uses served by an irrigation district under section 45‑497.
J. For the purposes of this section, "assured water supply" means all of the following:
1. Sufficient groundwater, surface water or effluent of adequate quality will be continuously available to satisfy the water needs of the proposed use for at least one hundred years. Beginning January 1 of the calendar year following the year in which a groundwater replenishment district is required to submit its preliminary plan pursuant to section 45‑576.02, subsection A, paragraph 1, with respect to an applicant that is a member of the district, "sufficient groundwater" for the purposes of this paragraph means that the proposed groundwater withdrawals that the applicant will cause over a period of one hundred years will be of adequate quality and will not exceed, in combination with other withdrawals from land in the replenishment district, a depth to water of one thousand feet or the depth of the bottom of the aquifer, whichever is less. In determining depth to water for the purposes of this paragraph, the director shall consider the combination of:
(a) The existing rate of decline.
(b) The proposed withdrawals.
(c) The expected water requirements of all recorded lots that are not yet served water and that are located in the service area of a municipal provider.
2. The projected groundwater use is consistent with the management plan and achievement of the management goal for the active management area.
3. The financial capability has been demonstrated to construct the water facilities necessary to make the supply of water available for the proposed use, including a delivery system and any storage facilities or treatment works. The director may accept evidence of the construction assurances required by section 9‑463.01, 11‑806.01 11-823 or 32‑2181 to satisfy this requirement.
Sec. 38. Section 48-3609.01, Arizona Revised Statutes, is amended to read:
48-3609.01. Watercourse master plans; definition
A. If a district organized pursuant to this chapter has completed a watercourse master plan which includes one or more watercourses, and if the plan has been adopted by the board or by any other jurisdiction in that river or drainage system, the board and the governing body of each jurisdiction may adopt and shall enforce uniform rules for that river or drainage system within the jurisdiction using criteria that meet or exceed criteria adopted by the director of water resources pursuant to section 48‑3605, subsection A.
B. During the preparation of a watercourse master plan, record owners of real property in and immediately contiguous to the watercourse or watercourses included in the planning shall be publicly notified by the board or its agents so that the owners may have input to the planning process. In addition, aggregate mining operations recommendation committees organized pursuant to section 11‑830 11-812, subsection D, if any, shall be notified.
C. All watercourse master plans shall consider recharge techniques including gabions, swales, dry wells, sand tanks and small dams.
D. This section does not apply to any city or town which has adopted a resolution assuming floodplain management and regulation within its area of jurisdiction as provided in section 48‑3610 prior to July 1, 1990.
E. A district that has prepared a watercourse master plan for a river may participate in the planning, establishment and operation of a recreational corridor channelization district established pursuant to chapter 35 of this title.
F. For the purposes of this section, "watercourse master plan" means a hydraulic plan for a watercourse that examines the cumulative impacts of existing development and future encroachment in the floodplain and future development in the watershed on potential flood damages and that establishes technical criteria for subsequent development so as to minimize potential flood damages for all flood events up to and including the one hundred‑year flood.
Sec. 39. Section 48-6414, Arizona Revised Statutes, is amended to read:
48-6414. Inapplicability of other adequate water supply provisions to proposed subdivisions in the district
Section 9‑463.01, subsections J through Q, section 11‑806.01, subsections F through I 11-823, section 32‑2181, subsection F, section 32‑2183, subsection F H, section 32‑2197.08, subsection D, section 45‑108, subsection H, section 45‑108.01, section 45‑108.02 and section 45‑108.03 do not apply to proposed subdivisions in the district. END_STATUTE
Sec. 40. Section 49-1273, Arizona Revised Statutes, is amended to read:
49-1273. Water supply development revolving fund; purposes; limitation
A. Monies in the water supply development revolving fund may be used for the following purposes:
1. Making water supply development loans to water providers in this state under section 49‑1274 for water supply development purposes.
2. Making loans or grants to water providers for the planning or design of water supply development projects. A single grant shall not exceed one hundred thousand dollars.
3. Purchasing or refinancing debt obligations of water providers at or below market rate if the debt obligation was issued for a water supply development purpose.
4. Providing financial assistance to water providers with bonding authority to purchase insurance for local bond obligations incurred by them for water supply development purposes.
5. Paying the costs to administer the fund.
6. Providing linked deposit guarantees through third party lenders by depositing monies with the lender on the condition that the lender make a loan on terms approved by the committee, at a rate of return on the deposit approved by the committee and the state treasurer and by giving the lender recourse against the deposit of loan repayments that are not made when due.
B. If the monies pledged to secure water supply development bonds issued pursuant to section 49‑1278 become insufficient to pay the principal and interest on the water supply development bonds guaranteed by the water supply development revolving fund, the authority shall direct the state treasurer to liquidate securities in the fund as may be necessary and shall apply those proceeds to make current all payments then due on the bonds. The state treasurer shall immediately notify the attorney general and auditor general of the insufficiency. The auditor general shall audit the circumstances surrounding the depletion of the fund and report the findings to the attorney general. The attorney general shall conduct an investigation and report those findings to the governor and the legislature.
C. Monies in the water supply development revolving fund shall not be used to provide financial assistance to a water provider, other than an Indian tribe, unless one of the following applies:
1. The board of supervisors of the county in which the water provider is located has adopted the provision authorized by section 11‑806.01, subsection F 11-823, subsection A.
2. The water provider is located in a city or town and the legislative body of the city or town has enacted the ordinance authorized by section 9‑463.01, subsection O.
3. The water provider is located in an active management area established pursuant to title 45, chapter 2, article 2.
Sec. 41. Retention of members
All persons serving as members or alternate members of a county planning and zoning commission on the effective date of this act may continue to serve until expiration of their normal terms.
Sec. 42. Effective date
Section 34‑201, Arizona Revised Statutes, as amended by section 24 of this act, is effective from and after June 30, 2013.
