Alabama Attorney General Opinion 1979-0151

OFFICE OF THE ATTORNEY GENERAL 00(5I LEE L. HALE DEPUTY ATTORNEY GENERAL WILLIAM PX.SEKURS. JR . EXECUTIVE ASSISTANT WALTER S. TURNER c1.11EF ASSISTANT ATTORNEY GENERAL JANIE NOBLES ADMINISTRATIVE ASSISTANT CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA APR 11 10 AOMINI MCIRMLOOM 64 NORTH UNION MONTGOMERY AREA (20151. SWIM 60 Mr. John M. Franklin City Clerk P.O. Box 1207 Phenix City, Alabama 36867 Municipalities - Phenix City Planning and Zoning 1. Ordinance proposing change in zoning district does not become effective until after public hearing. 2. Issuing of building permit in area subject to zoning ' change is within discretion of council, Dear Mr. Franklin: The Attorney General received your request on behalf of the City Council of Phenix City for an opinion regarding rezoning of an area in the city. In your letter you set out these facts: The facts as stated in the attached resolu- tion refer to the request for a building permit in a zone that is in the process of being changed. The property in question was legally zoned R-3 (multi-family residential in 1973). The City Council has scheduled a Public Hearing for March 20, 1979, to consider changing this area along with several other areas of the City to an R-1 zone (single family residential zone), The owners of this particular tract of land applied for a building permit for multi-family dwellings on February 19, 1979. The building permit was refused by the City on the grounds that a change in the zoning of this area was being contem- plated. The Council subsequently met on Mr. John M. Franklin Page Two February 20, 1979, and by a majority vote indicated its intention to change the area from an R-3 zone (multi-family residential zone) to an R-1 zone (single family residential zone). The City Council at this same meeting scheduled a Public Hearing on the proposed changes to the zoning ordinance and map. You then asked the following questions: The City Council of the City of Phenix City respectfully requests your opinion as to the status of,the existing zoning ordinance and map and the proposed zoning ordinance and map between the Council meeting on February 20, 1979, and the date for the Public Hearing on March 20, 1979. The City Council would also request your opinion as to whether building permits can be issued in the areas that are proposed to be changed by the proposed zoning map between February 20, 1979, and the date of the Public Hearing on March 20, 1979 In answer to your first question, I call your attention to Code of Alabama 1975, Section 11-52-77 concerning the procedure for adoption of zoning ordinances. The last paragraph of this Section states: No such ordinance shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. The next section, Section 11-52-78, which concerns the amend- ing or repealing of zoning regulation, districts, boundaries, and ordinances states the provisions of Section 11-52-77 relative to public hearings and official notices shall also apply to all chances and amendments. Thus, in accordance with the above quoted provision of Section 11-52-77 supra the proposed zoning ordinance enacted at the council meeting on February 20, 1979, will not become effective until after the public hearing on March 20, 1979, and the zoning districting adopted in 1973 remains in effect until that time. • Sincerely, CHARLES A. GRADDICK Attorney General By L N A F KNIGHT Assistant Attorney G neral F. Mr. John M. Franklin Page Three Regarding your second question, the original zoning ordinance continues until it is modified. Therefore, building permits may be issued by the city council in the area that is subject to the proposed zoning change, but the council is not required to issue the permits. The issuing of the permit is within the discretion of the council. If our office can be of further assistance, please do not hesitate to contact us. LFK;sg