Special Report Edition

Howdy, from the editor…

The Papers are a couple days late this time around — blame a rogue well pump and some emergency plumbing that had me playing handyman for a neighbor.

But to make it up to you, the next issue will hit your inbox early, packed with the Ultimate Guide to the 2nd Annual Opt-Out Expo. Stay tuned.

Now, most of you fine folks already know what an opt-out permit is. But for the uninitiated, let’s set the stage: the “Owner Builder Opt-Out” amendment to Cochise County’s Building Safety Code lets rural landowners on four acres or more build homes without county inspections breathing down their necks.

This freedom comes with some confusion — and a dash of legal shadow play. Last year, the county’s Developmental Services Director Dan Coxworth gave us a perfect quote when asked if an opt-out permit is a pass to “build whatever you want”:

“It kind of is.”

Today, we’re peeling back the layers of this onion to reveal the untold story of the opt-out permit — complete with twists, turns, and a few bureaucratic sneaky moves.

If it stirs something in you, don’t just fume into the ether — drop a polite email to your county supervisor. Contact info is at the bottom of the email.

Rural Characters

Flash back to 2006: Cochise County was preparing to update its building codes to align with the International Building Code (IBC). But not everyone in our wide-open spaces was keen on that tidy, one-size-fits-all framework.

At a public hearing on June 6, locals rallied for an amendment tailored for rural owner-builders. After a lot of digging, I found a record of the meeting minutes for that long ago hearing.

Local resident Kelly Savage argued it’d preserve the “rural character” of the county by keeping parcels large and high-density developments at bay. Angela Betting chimed in, pointing to air pollution and rising property taxes as unwanted side effects of denser housing.

The Supervisors were convinced — mostly. The amendment passed 2–1, and the original language was a breath of wild freedom:

“The purpose of this amendment is to exempt a Rural Residential Owner-Builder with a Category D property of four acres or more from compliance with the Cochise County Building Safety Code in a residential construction project.”

Read that again: exempt from compliance. Build your dream, your way.

But like with all good things, the bureaucracy came knocking.

Sneaky Changes

The opt-out amendment has been revised not once, not twice, but three times: in 2010, 2014, and 2017. It was the 2010 revision that altered the opening paragraph and shifted the original intent of the amendment.

In 2009, the Board of Supervisors directed the Planning and Zoning Commission to clarify how “rural” was defined in the amendment so it could apply to more parts of the county. The Commission made the requested adjustments — but also included an important, unexplained change to the opening paragraph of the amendment.

The new opening sentence read (underline added):

“The purpose of this amendment is to exempt a Rural Residential Owner-Builder from the requirement for construction plan review and inspections under the currently adopted version of the Cochise County Building Safety Code…”

The exemption here isn’t from compliance with code, but only from plan review and inspections.

The county’s online database doesn’t include the P&Z hearing where this change was discussed — if it was discussed at all.

And when the supervisors held their own hearing to approve the revision, the altered intent wasn’t mentioned. Comments from that meeting suggest the supervisors believed they were approving the same amendment as before, still granting permission to build outside strict code requirements.

If that’s true, the P&Z Commission might have slipped the change through unnoticed.

Nonetheless, the revision passed on a 2-1 vote, leaving the opt-out amendment’s original spirit substantially dampened.

“By Statute”

The change to the opt-out permits threw some rural folks into a head-scratching tizzy. Wasn’t the amendment supposed to give builders a hall pass on the big, bad building codes? The county was getting lots of questions.

So in 2014, the fine print was revised yet again. And this time, the second paragraph of the amendment made it crystal clear: Nope, those permits don’t let you sidestep building codes.

Dreams were dashed, like a tumbleweed caught in barbed wire.

Let’s have a gander at how that second paragraph has changed over the years (underlines added):

2006:
“By statute, this exemption does not exempt owner-builders from statewide codes such as the plumbing and fire codes and regulations regarding smoke detectors, nor does it exempt owner-builders from fire codes adopted by fire districts or the County.”

2010:
By statute, this exemption does not exempt owner-builders from statewide codes such as the plumbing, and state county, or fire-district adopted fire codes and regulations regarding smoke detectors, nor does it exempt owner-builders from health regulations regarding wastewater treatment systems.

2014:
By statute, this exemption does not exempt owner-builders from state and county building codes, or fire-district adopted codes and regulations regarding smoke detectors, nor does it exempt owner-builders from health regulations regarding wastewater treatment systems.

For those keeping score, “by statute” translates to “by Arizona law.”

Sure, the law says counties have to enforce fire codes and septic standards — but the 2014 addition of “state and county building codes”? That wasn’t required by law.

Let’s zoom in. Arizona statute 11-861 states:

A. In any county that has adopted zoning pursuant to this chapter, the board of supervisors may adopt and enforce, for the unincorporated areas of the county so zoned, a building code and other related codes to regulate the quality, type of material and workmanship of all aspects of construction of buildings or structures, except that the board may authorize that areas zoned rural or unclassified may be exempt from the provisions of the code adopted.

See that last bit? Exempt from the provisions of the code adopted. 

So, there you have it, plain as day.

The original intent of the amendment was to exempt builders from International Code.

Arizona law allows rural areas to be exempt from International Code.

But P&Z changed the amendment behind our backs.

And then some officials wanted it gone altogether.

Opting Out of Opt-Outs

The first crack at killing the opt-out permits came in 2017, when the county Planning & Zoning office rolled up to the board of supervisors with a presentation, a pile of concerns, and, frankly, some shaky logic.

Their gripe list? From the minutes:

Energy consumption? Fire resistance? These read as weak arguments to those who are familiar with how opt-out builders like to roll: 

We typically use natural or recycled building materials, like adobe and shipping containers, which are more fire resistant than stick frame houses. And opt-out builders are commonly building off-grid, which means solar energy and energy-efficient appliances.

When you’re building the home you and your family are gonna live in, you want it to be safe and secure.

The 2017 anti-opt-out presentation came with a slide deck featuring 15 photos of opt-out homes. Most of them were gorgeous. One was a funky little solarpunk shack — probably not everyone’s cup of tea, but hey, it looked like it was doing its job just fine.

Oh, and the officials tossed in one more complaint for good measure: opt-out permits are bad for business, they said. The contractor industry is losing revenue. What’s next — are they worried about the housekeeping industry because we have the gall to wash our own dishes?

In the end, the 2017 campaign to repeal the opt-out amendment never even made it to a vote.

In 2020, Dan Coxworth and Christine McLachlan of the Development Services office dusted off the anti-opt-out presentation, rehashing claims like how opt-out permits might hike up insurance rates (local insurance agents shot down that claim in 2017).

When asked if there were any actual examples of opt-out homes burning down, they shrugged: “We don’t keep track of that.”

County supervisors said “yeah, no” — they weren’t going to do away with this popular permit option, and again, the repeal proposal never went up for an official vote.

So, what’s next for Cochise County’s opt-out permits?

Opt-out-friendly Supervisors

When I interviewed the county supervisor candidates last year, the winning candidates gave these opinions about opt-out permits:

Tom Crosby: “People should enjoy maximum liberty.” 

Kathleen L. Gomez: “The rural beauty of Cochise County is a draw to people who are individuals and have the frontiersmen attitude. I believe that this new approach to housing can make us unique and forward thinking to the issue of affordable housing.”

Frank Antenori: “Owning and developing your own property is the ultimate pursuit of happiness. In a free country and "free county", you should be allowed to develop your property any way you desire as long as it doesn't create a hazard or health risk to your neighbors. Keeping in mind you still maintain individual responsibility for your own and your family's well being, the government should not interfere so long as you're not infringing on anyone else's rights.” 

With our current county supervisors seeming to have a soft spot for libertarianism and personal preference, opt-out permits are likely safe for now.

But why stop at safety? Let’s make them a point of pride for the county.

How about:

• Add language to the county’s new 20-year Comprehensive Plan that protects, or even encourages, opt-out building.

• Designate June 6 as “Owner-Builder Opt-Out Day.”

• Advocate for statewide bills promoting rural homesteading freedoms.

We owe it to the citizen trailblazers of 2006 to keep the opt-out spirit alive for the next generation.

What’s Next?

On Wednesday January 29 (tomorrow), our county supervisors will have a work session at 10am to discuss the new County Comprehensive Plan. If you’d like to watch the session remotely, the link is here.

Or you can email your supervisors with your thoughts:

• Tom Crosby (District 1): [email protected]

• Kathleen Gomez (District 2): [email protected]

• Frank Antenori (District 3): [email protected]

If you want to catch the next issue of the Ground Party Papers, including your guide to the 2nd Annual Opt-Out Expo, you can become a subscriber or supporter. The newsletter is issued every second and fourth Sunday of the month.

Hope to see y’all at the expo!

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