ALJDEC decisions subject to certification as final

16F-MC-EQS2015110-DEQ · Department of Environmental Quality · 2016-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 31, 2016 APPEARANCES: Majid Nayeri on his own behalf; William J. Ekstrom, Jr., Esq. for Mohave County ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. Appellant Majid Nayeri applied to Mohave County Development Services, Division of Environmental Quality (the “County”) for an onsite wastewater treatment permit for parcel number 216-06- 155 (MCDEQ Permit Number EQS-2015-110). 2. Parcel number 216-06-018 shares a property line with Mr. Nayeri’s parcel. The County determined that parcel 216-06-018 is not served by a common drinking water system or an existing water well. As such, based on Ariz. Admin. Code section 18-9- A312(C), the County determined that a fifty-foot setback was required. 3. On June 4, 2015, the County denied Mr. Nayeri’s application based on its determination that the treatment facility did not have the required fifty-foot setback. 4. Mr. Nayeri filed an appeal. In accordance with the terms of a Delegation Agreement between the County and the Arizona Department of Environmental Quality, the County requested that the Office of Administrative Hearings appoint an Administrative Law Judge to hear the appeal. 5. By an Order dated September 24, 2015, the hearing was scheduled to be conducted on December 30, 2015. The matter was continued and the hearing was held on March 31, 2016. 6. Mr. Nayeri’s parcel is about sixty-eight feet wide at its widest point. 7. The parcel immediately south of Mr. Nayeri’s parcel is number 216-06-018 and the next parcel south is number 216-06-042. Parcels 216-06-018 and 216-06-042 are under the common ownership of Marc Richards. 8. Based on the Arizona Department of Water Resources’ database for wells, there is no well on parcel 216-06-018. 9. There is a well located on parcel 216-06-042 and Mr. Richards has run piping or a hose from that parcel to parcel 216-06-018. 10. Parcel 216-06-018 also has electric power, but the record does not show whether the power is coming from parcel 216-06-042 or is an independent connection. 11. For several years, there have been RVs using parcel 216-06-018, which use includes using the water being piped from parcel 216- 06-042. As of the hearing date, parcel 216-06-018 was for sale and, according to Mr. Nayeri, was being advertised as having water and power.[1] 12. Mr. Nayeri had admitted into evidence an email exchange between the County’s Cullin Pattillo and the Arizona Department of Environmental Quality’s David Burchard, in which Mr. Pattillo provided a summary of a discussion between Mr. Pattillo and Mr. Burchard.[2] Mr. Pattillo wrote that parcel 216-06-018 was being served water from a well located on parcel 216-06-042 and he was asking for confirmation that because parcel 216-06-018 was being served by a well more than 100 feet from Mr. Nayeri’s parcel, the required setback would be only five feet. Mr. Burchard responded that “as the property is served by an existing drinking water well the 5 foot setback would apply.” 13. At the hearing, when asked about the email, Mr. Pattillo testified that the County made its decision to deny Mr. Nayeri’s application based on all the information it received, including Mr. Buchard’s input. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency's denial of a license or permit or a denial of an application or request for modification of a license or permit, the applicant has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(1). 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 5. The principles of construction that apply to statutes apply with equal force to administrative rules and regulations. See Daimlerchrysler Servs. N. America v. Arizona Dep’t of Revenue, 210 Ariz. 297, 110 P.3d 1031 (App. 2005). 6. Under Ariz. Admin. Code section 18-9-A312(C), the minimum setback from a property-line shared with any adjoining lot or parcel not served by a common drinking water system or an existing water well is fifty feet. “A ‘common drinking water system’ means a system that currently serves or is under legal obligation to serve the property and may include a drinking water utility, a well-sharing agreement, or other viable water supply agreement.” Id. 7. Mr. Nayeri has not shown by a preponderance of the evidence that parcel 216-06-018 is served by a “common drinking water system” as that term is defined in Ariz. Admin. Code section 18-9- A312(C). 8. Mr. Nayeri has not shown by a preponderance of the evidence that parcel 216-06-018 is served by an “existing water well” as that term is used in Ariz. Admin. Code section 18-9-A312(C). 9. Consequently, Mr. Nayeri has not shown that the County erred when it denied his application and Mr. Nayeri’s appeal should be dismissed. ORDER IT IS ORDERED that Majid Nayeri’s appeal is dismissed and Mohave County’s decision to deny his application is affirmed. The parties may seek judicial review of this Decision. Pursuant to Ariz. Rev. Stat. section 12-904, an action to review a final administrative decision shall be commenced by filing a notice of appeal in Superior Court within thirty-five days from the date when a copy of the decision sought to be reviewed is served upon the party affected. Done this day, April 20, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Copy mailed/e-mailed/faxed April 20, 2016 to:

Misael Cabrera, PE, Director Department of Environmental Quality 1110 W Washington St, Sixth Floor Phoenix, AZ 85007

Majid Nayeri 4125 Hawks Cove Ann Arbor, MI 48105

William J. Ekstrom, Jr., Esq. Mohave County Attorney's Office Post Office Box 7000 700 W. Beale Street Kingman, AZ 86402

By Felicia Del Sol ----------------------- [1] It may be an overstatement to say that the lot is being advertised as having water, but Mr. Nayeri’s witness, Houston Henderson, contacted the listing agent who informed Mr. Henderson that there is water available. [2] In his email, Mr. Pattillo used the wrong parcel number for Mr. Nayeri’s parcel.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826