Alabama Attorney General Opinion 1979-0142

LEE L. HALE DEPUTY ATTORNEY GENERAL WILLIAM M. BEXURS. JR. EXECUTIVE ASSISTANT WALTER S. TURNER CHIEF ASSISTANT ATTORNEY GENERAL JAMIE NOBLES ADMINISTRATIVE ASSISTANT CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA SEP 10 1111 Of ICE OF THE ATTORNEY GENERAL 4aell 79e Do iga ADMINISTRATIVE BUILDING 64 NORTH UNION MONTGOMERY, AAAAA MA 36130 AREA (20S}. 1134-6150 Chalmers Bryant, Mayor City of Andalusia Andalusia, Alabama, 36420 Municipalities - Streets - Subdivisions Paving priorities discussed. Dear Mayor Bryant: This office has received the opinion request which presents numerous questions concerning the regulation of subdivisions and paving priorities within the City of Andalusia. The facts presented, will be summarized in narrative form. Prior to March 1963, the Subdivision Ordinance of the City of Andalusia, which was first enacted in 1948, did not require subdivision deve- lopers to pave any streets. From March 1948 to March 1963, fifty- one subdivisions were recorded. Some had all the streets opened at the time the plat was recorded. Some designated streets were not opened or were partially opened. Some of the open streets were paved, but some were opened without paving. The City of Andalusia graded the opened, but unpaved streets: The City of Andalusia paved some of the opened streets or portions thereof and the developers paved all or part of some of the open streets. During the eleven years preceding the opinion request the City paved several miles of streets in several different areas of the City. Now, persons buying lots abutting the unpaved streets of these older subdivisions have petitioned the City to pave their streets without cost to them as has been done for the past decade. Persons and/or developers of subdivisions who paved designated streets at their own expense are now challenging the City's right to pave additional streets in any subdivision without cost to property owners. You note that the persons who are challenging the City's authority are for the most part persons and/or developers whose respective subdivisions were Chalmers Bryant, Mayor Page Two opened after the 1963 amendment to the Subdivision Ordinance which now requires, developers to pave all streets at the ex- pense of the developers. You state, in conclusion, that the City desires to pave its streets according to the City's evaluation of existing need as related to residents who live on unpaved streets and not as related to unimproved property. The City desires to place a paving priority on streets with existing dwellings as opposed to streets without existing dwellings. Your first question is: If a City determines that a certain street, or streets, within its corporate limits should be paved without cost to abutting property owners can the City proceed with the task without liability to other persons who disagree with the judgment of the City, on the ground that the dissidents themselves paid for their paving? Under Code of Alabama 1975, §11-48-4 a city may cause the cost and expense of all or any part of any improvement or reimprovement which it is authorized to make under the provisions of the section to be assessed against the property abutting on a street, avenue, alley, highway or other public place which is improved. However, there is no requirement that the cost of the improvement be assessed to the property owner. Thus, a city may pave public streets without cost to the abutting property owners. This office is unaware of any applicable provision of law which would render the city liable to those persons who must pay or who have paid the cost of paving their streets, particularly if there is no pattern of obvious discrimination and the City develops and adheres to a reasonable policy. Your second question is whether a developer who had his plat approved subsequent to March 1963 and paved his streets has standing to enjoin the City from paving a dedicated street in a subdivision dedicated prior to 1963. Again, this office knows of nothing which would give such .a person standing to sue provided that such dedicated streets had been "accepted". Your third question is an extension of your second with the exception that you define the street to be paved as "a dedicated street, whether accepted or not." If the city has not "accepted" the street it is clear that it would be private property and thus the City would have no authority to pave it. As to what constitutes "acceptance", in Oliver v. Water Works and Sanitary Sewer Board, 261 Ala. 234, 73 So.2d 552 (1954) the Court held that an "acceptance" requires some distinct act by the City, such as a formal resolution or acts and conduct of the city authorities, such as grading or paving,_ recognizing it as a dedicated street. Chalmers Bryant, Mayor Page Three Your fourth question reads as follows: Is the City authorized to make its own judgment as to when and where it elects to pave any street within its corporate limits, when the cost of paving is to be paid solely by the City? With the answers to previous questions in mind, it is the qualified opinion of this office that your question may be answered in the affirmative. Your fifth inquiry is whether the City of Andalusia may enjoin the opening of presently dedicated, but unopened streets within the City's corporate limits? Without more information, this question cannot be answered. This office would need such facts as the date of dedication and whether such streets had been accepted so that the appropriate Subdivision Ordinance could be interpreted. Your sixth question is whether the City has the responsibility to open all dedicated streets within a subdivision where the deve- loper failed to do so? It is the opinion of this office that this decision is entirely one of policy to be determined by the City of Andalusia and could certainly be based on an evaluation of existing need with a priority given to streets with existing dwellings. Your final question is: If the abutting property owners pay the cost of opening a dedicated street, what duty, if any, does the City have to maintain that street? If the City does not accept the dedication, it would remain a private street and the city would have no duty. You should, of course, be aware that an acceptance of the street could have been made in the past as evidenced by acts such as grading. If the City has accepted the dedication, then the City, under Code of Alabama 1975, §11-47-100 could be held liable. Section 11-47-100 states: No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness or failure to remedy some gefect in the streets, alleys, public ways or buildings after the same had been called to the attention of the council or other governing Chalmers Bryant, Mayor Page Four body or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts or the negligence, carelessness or unskillfulness of any person or corporation, then such per- son or corporation shall be liable to an action on the same account by the party so injured. (Emphasis Supplied) I do hope that this response sufficiently answers your numerous inquiries. If, however, we may be of further assistance, please do not hesitate to contact us. Sincerely yours, CHARLES A. GRADDICK Attorney General By • ryf A II\ /A7,>L)Tfl-,1 CAROL JEAN SMITH Assistant Attorney General CJS/sa