AUTHORIZE LETTER TO THE ATTORNEY GENERAL AND AUTHO - LUKE LETTER.PDF

Mar ic op a County
July 25, 2008
The Honorable Terry Goddard
Arizona Attorney General
Office of the Attorney General
1275 W. Washington Street
Phoenix, Arizona 85007
Re: A.R.S. § 28-8481 and Arizona Attorney General Opinion No. 108-003 (R08-
Oil) issued March 20, 2008.
Dear Attorney General Goddard:
The Maricopa County Board of Supervisors hereby notifies you regarding Maricopa
County's lack of authority to deny the issuance of building permits as a result of Arizona
Revised Statutes (A.R.S.) § 28-8481, and/or your Arizona Attorney General Opinion No.
108-003 (R08-011) issued March 20, 2008 ("Opinion No. 108-0003") in the area
surrounding Luke Air force Base Auxiliary Field 4 1("AUX 1).
Maricopa County and its Board of Supervisors want it understood that Luke Air
Force Base is vital to the economy of Maricopa County and all of Arizona. Luke's mission
is also critical in support of the war on terrorism and to our nation's defense. Maricopa
County will not do anything that will jeopardize Luke's mission or the United States Air
Force's continued use of Luke Air Force Base and AUX #1.
A.R.S. § 28-8481(A), which was enacted by the legislature and signed into law by
the Governor on April 19, 2004, requires Maricopa County to adopt comprehensive and
general plans and school district development plans, if applicable, for property in the high
noise ("High Noise") or accident potential zones ("APZ") in the vicinity of an ancillary
military facility (AUX # 1) to assure development compatible with the high noise and
accident potential generated by the ancillary military facility operations that have or may
have an adverse effect on public health and safety. Maricopa County has an adopted
comprehensive plan. The comprehensive plan is composed of area plans throughout
Maricopa County. The plan for the AUX # 1 area is known as the White Tanks Area Plan.
The White Tanks Area Plan was last amended in December, 2000. Should Maricopa
County amend its comprehensive plan, general plan, and/or school district development
plan for the high noise and accident potential zones and then down-zone the non-annexed

The Honorable Terry Goddard
Arizona Attorney General
July 25, 2008
Page 2
property surrounding AUX 4 I as required by the statute, landowners affected will bring
suit against Maricopa County for a taking of their properties without due process of law or
just compensation.
In addition to the potential exposure, Maricopa County does not believe it is
appropriate for any government to expropriate an owner's property without due process of
law or adequate compensation. Unfortunately, A.R.S. § 28-8481 does not provide an
avenue or funding for either.
In addition to the concerns regarding potentially unlawful takings, A.R.S. § 28-8481
is not a basis for denial of a building permit. Maricopa County has jurisdiction, including
building permitting authority, over non-annexed areas around AUX 1, including areas
• within the High Noise (within noise contour lines in excess of 80 decibels) and/or APZ1
and APZ2 (the "Restricted Area"). The unincorporated property surrounding AUX # 1 was
zoned Rural-43 (R-43) prior to December 31, 2000. If an applicant submits an application
for a building permit which complies with all of the requirements of R-43 zoning the
applicant is entitled to the permit. R-43 zoning is generally described as permitting the
construction of one dwelling unit per one acre. Maricopa County Zoning Ordinance
("MCZO") § 503.1.
On September 23, 2004, shortly after the changes to A.R.S. § 28-8481 were enacted,
Deputy County Attorney Terry E. Eckhardt, of the Marieopa County Attorney's Office,
notified Ms. Patricia J. Boland of your office of the difficulty the Planning and
Development Department of Maricopa County was having reconciling this statute and
current statutes and case law as they relate to existing R-43 zoning in the area. He noted
that the property surrounding AUX # I was already zoned R-43 and that the owners of the
real estate believed that they were entitled to build one (1) home per acre and were making
inquires regarding building permits. At that time, Mr. Eckhardt requested that the Attorney
General's Office advise Maricopa County as to whether or not it should be issuing building
permits for the areas zoned R-43 surrounding AUX 4 1. A copy of Mr. Eckhardt's
September 23, 2004 correspondence is enclosed.
When no response was forthcoming from your office to the letter of September 23,
2004, Mr. Eckhardt sent another letter on November 3, 2004 to Ms. Boland and yourself. In
this letter, Mr. Eckhardt noted that Maricopa County Planning and Development
Department had issued a moratorium on granting building permits in the High Noise and
AZP areas surrounding AUX 4 1. As a result of this self-imposed moratorium, Maricopa
had claims asserted against it for taking land-owners' properties without due process of law
or compensation.
In Mr. Eckhardt's November 3, 2004 letter, he noted that pursuant to A.R.S. § 28-
8481(1) he was notifying you that Maricopa County will begin issuing building permits on
the one acre and larger lot split lots in the High Noise and AZP areas surrounding AUX 4 1.

The Honorable Terry Goddard
Arizona Attorney General
July 25, 2008
Page 3
Mr. Eckhardt further requested that if you believed Maricopa County's action in issuing the
stated building penults put it in non-compliance with A.R.S. § 28-8481, that you should so
notify Maricopa County immediately. He further requested a response to his inquiries
contained in his September 23, 2004 correspondence. A copy of Mr. Eckhardt's November
3, 2004 correspondence is also enclosed.
On November 8, 2004 you responded by stating that your office has taken no
position regarding the propriety of the County's issuance of building permits within the
high noise and accident potential zones of Luke's Auxiliary Field # 1. . as nothing in
A.R.S. § 28-8481 charges our office with the approval of building permits." A copy of your
response of November 8, 2004 is also enclosed. Following receipt of your letter of
November 8, 2004, when a request for a building permit was presented for property located
within the Restricted Area surrounding Aux # 1, such requests have been treated the same
as for property located outside the Restricted Area and if the application complies with all
Maricopa County requirements, a building permit has been issued.
We have reviewed your recent Opinion No. 108-003 with our legal counsel.
Unfortunately, we do not believe that either A.R.S. § 28-8481 or Opinion No. 108-003
provides any basis for Maricopa County to deny the issuance of building permits in the
Restricted Area surrounding AUX # 1.
It is well established that the only powers possessed by county boards of supervisors
are those expressly conferred or expressly implied by statute. Davis v. Hidden, 124 Ariz.
546, 550, 606 P.2d 36, 40 (App. 1979) citing llaricopa County v. Southern Pacific Co., 63
Ariz. 342, 162 P.2d 619 (1945) and Transamerica Title Insurance Co. v. Cochise County,
26 Ariz. App. 323, 548 P.2d 416 (1976). Under Arizona law, counties are granted the
power to issue building permits under A.R.S. § 11-321, Under that statute, the board of
supervisors for a county shall require a building permit for any construction of a building or
an addition to a building at a cost exceeding $1,000.00, unless a city or town has a separate
ordinance. A.R.S. § 11-321(A). Therefore, Maricopa County has responsibility for issuing
building permits for the unincorporated areas surrounding AUX # 1.
A.R.S. § 11-808 provides the sole authority for counties to deny building permits.
See P.F. West, Inc. v. Superior Court of State of Ariz., In and For Pima County, 139 Ariz.
31, 33, 676 P.2d 665, 667 (App. 1984). That statute requires county zoning ordinances to
be enforced through the withholding of building permits if the proposed building does not
comply with the county zoning ordinances. A.R.S. § 11-808(A); P.F. West at 33, 676 P.2d
at 667. Specifically, A.R.S. § 11-808 provides for establishing the position of county
zoning inspector, and it further admonishes that the zoning inspector:
"shall recognize the limitations placed on his authority by A.R.S. §
11-821, and shall issue the permit when it appears that the proposed
erection, construction, reconstruction, alteration or use fully
conforms to the zoning ordinance."

The Honorable Terry Goddard
Arizona Attorney General
July 25, 2008
Page 4
A.R.S.§ 11-808(B) (emphasis added).
We are not aware of any relevant statutes or case law that provide for the denial of a
building penult because of a violation Of a State law. A.R.S. § 11 L808(B) only requires
compliance with the county zoning ordinance. We have therefore determined, after advice
from our attorney, that the authority to deny the issuance of building permits must arise
solely out of violations of county ordinances or zoning regulations. See A.R.S. § 11-
808(A); see also P.F. West at 33, 676 P.2d at 667 and Davis v. Hidden, 124 Ariz. 546, 550,
606 P.2d 36, 40 (App. 1979). While there is no direct authority in Arizona, many other
state courts have determined that the issuance of building permits is nothing more than a
ministerial matter, in which the issuer has no discretion. See Charter Land Development
Corp. v. Hartmann, 170 A.D.2d 600, 601, 566 N.Y.S.2d 375, 376 (1991); Evans v. Burruss,
401 Md. 586, 605, 933 A.2d 872, 883 (2007); Lockyer v. City and County of San Francisco,
33 Ca1.4th 1055, 1067, 95 P.3d 459, 462-463 (2004); and James v. County of Kitsap, 154
Wash.2d 574, 586, 115 P.3d 286, 292 (2005). Therefore, since there is no county ordinance
prohibiting construction and the proposed building conforms to the zoning ordinance,
Maricopa County has no authority to deny a building permit to property located within the
Restricted Area surrounding AUX 4 1.
In Davis v. Hidden, 124 Ariz. 546, 606 P.2d 36, (App. 1979), the Arizona Court of
Appeals addressed the gap that exists between development standards that originate in State
law and the capacity of a county to enforce them by way of issuance/denial of building
permits. The issue in that case was the authority of a county to deny a residential building
permit because a proposed septic tank was contrary to State law. Davis at 548, 606 P.2d at
38. The court held that although a county has the authority to require compliance with State
laws as a predicate for the issuance of a building permit; it can only exercise that authority
by enacting a county ordinance. Id. A county is entitled to refuse a building permit only
where a county ordinance so provides. Id at 549, 606 P.2d at 39 (emphasis added).
Specifically, the Court stated:
"[a]s there is no county ordinance or regulation linking septic tank
sanitation to the issuance of building permits, we hold that the zoning
inspector and thus the board of supervisors were without authority to
refuse the issuance of a building permit to appellant upon the
proposed use of septic tank sanitation."
Id at 550, 606 P. 2d at 40.
Similarly, while A.R.S. § 28-8481 provides restrictions on development around
certain military areas and requires that any development in the area be compatible with the
high noise and accident potential, it does not authorize counties to deny building permits as
a method of enforcement. As in the situation addressed in Davis, Maricopa County, under
its current zoning ordinance, is not authorized to enforce the State standards for

The Honorable Terry Goddard
Arizona Attorney General
July 25, 2008
Page 5
development in the high noise and accident potential zones based solely on the State
restrictions. Maricopa County cannot deny a building permit if the proposed structure is in
compliance with the existing county zoning ordinance. Thus, as long as a proposed
structure does not violate the requirements of R-43 zoning or any other county ordinance,
Maricopa County does not have the authority to deny a building permit and will continue to
issue building permits when requested.
A.R.S. § 28-8481(A) requires Maricopa County to adopt a comprehensive plan, a
general plan, and/or a school district development plan, if applicable, for property in any
high noise and/or accident potential zone. It further requires Maricopa County to adopt and
enforce zoning regulations for property in the high noise or accident potential zone to assure
development compatible with the high noise or accident potential generated by AUX 4 1
that have or may have an adverse effect on public health and safety. To date, Maricopa
County has not done so. Should Maricopa County amend its comprehensive plan, general
plan, and/or school district development plan for the high noise and accident potential zones
and then down-zone the non-annexed property surrounding AUX 4 1 as required by the
statute, landowners affected would bring suit against Maricopa County for a taking of their
properties without due process of law or just compensation. Since the enactment of A.R.S.
§ 28-8481(A) did not appropriate any funds for the purchase of property, paying any
affected landowner would amount to an unfunded mandate and a preemption of local
authority.
The purpose of this letter is to advise you pursuant to A.R.S. § 28-8481(K) that
Maricopa County has no alternative, so as not to deprive land owners of their property
without due process of law, but to continue to issue residential building permits on the one
acre and larger legal lots in the high noise and accident potential zones surrounding AUX #
I, provided the applicant complies with all of the requirements of Maricopa County. The
Maricopa County Board of Supervisors is concerned that if it does not continue to issue
building permits, landowners will assert that the down-zoning of their property, in view of
the property's location and utility, essentially renders the property worthless. Therefore,
until a court of competent jurisdiction enjoins Maricopa County from taking such action, it
will continue to do so.
If you disagree with Maricopa County's position that it does not have any basis
under the law to discontinue to issue building permits, please notify us as provided in
A.R.S. § 28-8481(K) of any basis under which you have probable cause to believe that
Maricopa County has not complied with § 28-8481(3). We would assume that under such
circumstance, your office would take action under the statute to enjoin Maricopa County
from doing so in the future.
While we understand that this is a difficult issue for all concerned elected officials at
the federal, state and local levels, we do not have the luxury of picking and choosing only
convenient and non-controversial issues to address. As public servants, we have a
responsibility to resolve all issues before us, not just the politically expedient.

The Honorable Terry Goddard
Arizona Attorney General
July 25, 2008
Page 6
Please be advised that if we have not heard from your office within ten (TO) days of
the date of this letter, Maricopa County will have no choice but to file an action for
declaratory relief against the State of Arizona to have this matter finally decided by the
courts.
Andrew Kunasek, Chairman
Maricopa County Supervisor, District 3
Fulton Brock
Maricopa County Supervisor, District 1
Don Stapley
Maricopa County Supervisor, District 2
Max W. Wilson
Maricopa County Supervisor, District 4
Mary Rose Wilcox
Maricopa County Supervisor District 5
Enclosures

fdaritopa County attorittp
RICHARD M. ROMLEY
September 23, 2004
Patricia J. Boland
Assistant Attorney General
Office of the Attorney General
1275 West Washington Street
Phoenix, Arizona 85007
Re: H.B. 2141
Dear Ms. Boland:
This letter is to confirm our phone conversation of September 21, 2004. 1 advised you
at that time that the Planning and Development Department of Maricopa County, which I
represent, is having a great deal of difficulty reconciling the new provisions of A.R.S. §
28-8481 (as created by the above captioned legislation) with current statutes and case
law, especially as they relate to existing Rural-43 (1 house per acre) zoning in noise
zones and accident potential zones surrounding Luke Air Force Auxiliary Airfield #1.
The property surrounding the Auxiliary #1 is already zoned for 1 house per acre.
Current statute allows property owners to split their property into 5 or fewer parcels
without seeking permission or authority from Maricopa County. So long as subsequent
owners are not acting in concert, split properties can again be split until all property is
split into tracts of 1 acre or more. All of this can be done without the approval or
permission of Maricopa County, as the zoning already exists and has existed for many
years.
The owners of the subject real estate believe that they are entitled to build 1 home per
acre and are seeking or inquiring as to building permits to do so. As you are aware, the
issuance of a building permit is an administrative act by a unit of government; as long as
the person seeking the permit has complied with all laws, rules and regulations
pertaining to the issuance of such permit, the governmental unit does not have the
discretion to refuse to issue such permit. We are asking the Attorney General's Office
to advise us whether or not we should be issuing building permits for the areas zoned
R-43 surrounding Auxiliary #1.
DIVISION OF COUNTY COUNSEL
- 222 N. CENTRAL AVENUE, SUITE 1100 PHOENIX, AZ 85004
E:^1rrVirrV, flC OC7 .

Ms. Patricia J, Boianci
September 23, 2004
Page 2
In addition A.R.S. § 28-8481(U) prohibits a political subdivision from permitting or
approving the division of property in the noise and accident potential zones into lots of 4
acres or less. Maricopa County will not approve any subdivision plan that creates
building lots of 4 acres or less. However, as previously stated, a property owner does
not have to seek county authority to split the lots down to the existing zoning and once
they do that we believe that we are required to issue a building permit, provided the
conditions for a permit are met.
As we discussed on the phone, we believe there may be a conflict between the new
legislation and the county's responsibilities vis-a-vis pre-existing property entitlements.
We would ask that you advise us as to your position on this matter as the statute
requires us to notify you of our compliance with the statutes.
Very truly yours,
MARICOPA COUNTY ATTORNEY'S OFFICE
Division of County Counsel
,Q-tv
Terry E. Eckhaidt
Deputy County Attorney
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cc: Joy Rich, Director, Planning & Development
SACOUNSELlcivil\Clients Fiscal D4-05Planning and Developrnentitr.AG.H132141.doc

Alaritopa County attornrp
RICHARD M. ROMLEY
Hand-Delivered
November 3, 2004
Honorable Terry Goddard, Arizona Attorney General
Ms. Patricia J. Boland, Assistant Attorney General
Office of the Attorney General
1275 West Washington Street
Phoenix, Arizona 85007
Re: H.B. 2141
Dear Mr. Goddard and Ms. Boland:
As you are aware, I sent you a letter dated September 23, 2004 (copy enclosed)
detailing the concerns Maricopa County has with trying to implement the mandates
contained in the above- referenced legislation as it relates to Luke Air Force Base
Auxiliary Field #1.
Pending further analysis of the applicability of the new legislation to building permits the
Maricopa County Planning and Development Department issued a moratorium on
granting building permits in the high noise and accident potential zones as defined in
the statute, A.R.S. § 28-8461.
The purpose of this letter is to advise you pursuant to A.R.S. § 28-8481(1) that Maricopa
County will begin issuing residential building permits on the one acre and larger lot split
lots in the high noise and accident potential zones surrounding Luke Air Force Base
Auxiliary Field #1 seventy-two hours after delivery of this letter to your office.
Pursuant to the statute if you believe our action in issuing the stated building permits
puts us in non-compliance with A.R.S. § 28-8481, you should so notify us within
seventy-two (72) hours of the delivery of this letter to you.
DIVISION OF COUNTY COUNSEL
222 N. CENTRAL AVENUE, SUITE 1100 • PHoEmx, AZ 85004
(602) 506-8541 • TOO (602) 506-4352 • FAX (602) S06-8567 • www.rnaricopacountyattorney.org

Honorable Terry Goddard, Arizona Attorney General
Ms. Patricia J. Boland, Assistant Attorney General
November 3, 2004
Page 2
in addition, we would respectfully request d epuC I to the issues setforth in our 1-tter
of September 23, 2004.
Very truly yours,
MARICOPA COUNTY ATTORNEY'S OFFICE
Division of County Counsel
Ej-4,L4.611--
Terry E. Eckhardt
Deputy County Attorney
TEE/emt
cc: Joy Rich, Director, Planning & Development
S:\COUNSELIciviL\CRents Fiscai 04-05iPlanning and Deve4mentIltnAG.HB2141.#2.doc

• OFFICE OF THE ATTORNEY GENERAL
STATE OF ARIZONA
TERRY GODDARD
ATTORNEY GENERAL
November 8, 2004
Terry E. Eckhardt
Deputy County Attorney
Maricopa County Attorney's Office
222 North Central Avenue, Suite 1100
Phoenix, AZ 85004-2206
Re: H.B. 2140 and H.B. 2141
Dear Mr. Eckhardt:
I am in receipt of your letters of November 3, 2004 and September 23, 2004 regarding
interpretation of A.R.S. § 28-8481, as amended in the last legislative session. We have also received
numerous inquiries by telephone and mail from private parties regarding the propriety of Maricopa
County's issuance of building permits for property surrounding Luke Air Force Base's Auxiliary
Airfield #1.
I share your concerns regarding the need to protect Arizona's military bases and ancillary
military facilities. Your actions demonstrate your serious commitment to the requirements contained in
A.R.S. § 28-8481 that political subdivisions ensure that development surrounding military airports and
ancillary military facilities is compatible with the existence of those airports and facilities.
As you know, this Office has taken no position regarding the propriety of the County's issuance
of building permits within the high noise and accident potential zones of Luke's Auxiliary Field #1.
enthusiastically support the County taking an aggressive position to protect Auxiliary Field #1.
However, nothing in A.R.S. § 28-8481(1) charges this Office with the approval of building permits. We
believe, therefore, that the questions posed in your letters and by various property owners are best
answered by the County.
Ter •Goddard
Ariz a Attorney General
I 275 WEST WASHINGTON, PHOENIX, ARIZONA 85007-2926 • PHONE 602,542.4266 • FAX 602.542.4088