Have you ever been befuddled by a local ordinance, unsure what steps are required to bring your business into compliance? Have you ever applied for a local license, permit, or other approval and experienced delays that did not make sense? Has your business been subject to municipal or county inspections that you felt were conducted unfairly? Take note, change is coming. A new law passed in the 2011 legislative session creates a “regulatory bill of rights” applicable to municipalities, counties, and county flood control districts (referred to collectively as “local governments”). Senate Bill 1598 will provide Arizona businesses regulated by local governments with additional tools to navigate the regulatory maze.
SB 1598’s regulatory bill of rights is modeled after the bill of rights governing state agencies, enacted in 1998 and codified in Title 41 of the Arizona Revised Statutes. The aggregates industry, including the Arizona Rock Products Association, began the effort for regulatory reform at the local level. Difficulties experienced by mining companies in obtaining timely review of zoning and flood control applications served as the impetus for the measure. The regulatory reform effort soon spread throughout the larger business community, with the Arizona Chamber of Commerce and Industry also becoming involved and broadening the scope of the bill. The bill’s proponents recognized the need to include local government representatives early in the drafting process to identify and resolve concerns cooperatively before bringing the bill to the floor. The extensive negotiations behind SB 1598 resulted in a bill that both industry and local government could support.
Licensing Time Frames. Like its counterpart under Title 41, SB 1598 requires local governments to act on license applications within a predetermined time frame. Each licensing time frame must be divided into two segments: an “administrative review” segment to determine whether the application is complete and a “substantive review” segment to determine whether to approve the license. To sidestep concerns about overriding local autonomy, SB 1598 permits local governments to establish the time frames for each type of license. Local governments must establish licensing time frames by December 30, 2012.
Additional Licensing Protections. Local governments must inform an applicant up front—at the time an application is obtained—of all steps required to receive a license. Further, if a local government denies an application, it must provide a written or electronic notice that cites the specific legal authority on which the denial is based and provides notice of the right to appeal. In this way, SB 1598 prevents local governments from adding on requirements during the application process or denying an application for undisclosed or vague reasons or grounds not stated in the law.
Inspection Protocols. The inspection protocols that SB 1598 requires (applicable for most businesses, with a few exceptions) include the following: (1) allowing a regulated business to have an on-site representative accompany an inspector; (2) providing the regulated business with copies of any documents removed from the premises and splits or duplicates of any samples taken; (3) allowing the regulated business an opportunity to correct identified deficiencies before initiating enforcement proceedings (with some exceptions); and (4) providing notice of the regulated entity’s rights and any applicable inspection fees.
Aggregate Protections. Aggregates (particulate materials such as sand, gravel, and crushed stone, used to make concrete) are typically mined from riverbeds and riverbanks, including from the Salt, Gila, and Agua Fria Rivers in Maricopa County. Aggregate mining, which is regulated by various federal and state agencies including county flood control districts, sometimes leads to conflicts with nearby residents affected by noise, dust, traffic, or other impacts associated with mining activities. To address these problems, SB 1598 requires local governments to include in their general or long-term planning a land use element that identifies known sources of aggregates and establishes policies to preserve these resources and avoid incompatible land uses (e.g., distance and buffering policies).
Other. SB 1598 includes additional protections designed to increase the accountability and transparency of local government. It allows a person who prevails against a local government by adjudication on the merits to recover attorney’s fees and other expenses. SB 1598 also requires local governments to publish and post online at least annually a directory summarizing their ordinances, codes, and substantive policy statements. Finally, the bill creates a procedure to allow a person to request and obtain clarification of a local government’s interpretation or application of any statute, rule, ordinance, or substantive policy statement that affects the license application process. The local government must respond within thirty days and provide the person who made the request an opportunity to discuss the response.
SB 1598 should benefit Arizona businesses regulated by local government by making it easier and faster to obtain necessary licenses and other approvals. Licensing time frames will prevent applications from being lost in a regulatory abyss and enable businesses to anticipate when needed approvals will be obtained. Required inspection protocols should help to eliminate inconsistencies that often arise due to the idiosyncrasies of different inspectors. For the aggregates industry, the additional planning requirements will help to eliminate future land use conflicts. The additional tools and protections that SB 1598 provides will help Arizona businesses cut through the regulatory morass and achieve their goals.