Alabama Attorney General Opinion 1979-0153

THE ATTORSEY. GENERAL STATE OF ALABAMA MONTGOMERY, ALARIRMA 36f - 0015a # APR 1 1 I" CHARLES A. GRADDICK ATTORNEY GENERAL Honorable G. William Noble Mayor City of Gardendale Gardendale, Alabama 35071 Municipalities - Planning and Zoning - Gardendale, City of. Leases of parcels of land for building development may create a "subdivision" for purposes of municipal subdivision regulation. Opinion by Assistant Attorney General Smith. Dear Mayor Noble: This office has received your opinion request of February 5, 1979 regarding a clarification of the subdivision regulations of the City of Gardendale. Before answering your question, it appears that a clari- fication of the term "subdivision" is needed. In your opinion request you state: Under the subdivision regulations of the City of Gardendale when a single tract of land is divided into two par- cels a subdivision of said tract is required, or if a portion of a single tract of land is sold to another party a subdivision is required. Honorable G. William Noble Page Two It is apparent that your interpretation of your subdivision regulations is in direct conflict with the statutory authority authorizing a municipality to regulate subdivisions of land. For purposes of regulation by a municipality, the word "subdivision" is defined in Code of Alabama 1975, §11-52-1 (6) as: The division of a lot, tract or parcel of land into two or more lots, plats, sites or other divisions of land for the purpose, whether immediate or future, of sale or of building development. Such term includes resubdivision and, when appropriate to the context, relates to the process of subdividing or to the land or territory subdivided. In an opinion to Honorable Russell B. Johnson, Planning and In- dustrial Development Board, under date of July 28, 1970, a copy of which is enclosed, this office stated: I am of the opinion that a "subdivision" is created when a person divides a tract of land into two or more lots with the intent to convey, either presently or in the future, more than one of such lots. However, a "subdivision" is not created by a person who sells or offers for sale only one lot which is a part of a larger tract owned by him. In that opinion this office concluded: If he intends to convey both lots, a "subdivision" would be created. If he intends to convey only one lot and re- tain the remainder of his large tract, a "subdivision" would not be created. Of course, the intent of the owner of the large tract is a question of fact which must be decided in each case. Hon. William Noble Page Three It is therefore, apparent that the City of Gardendale has no statutory authority to enforce subdivision regulations on a division of land for sale unless the owner of the large tract in question intends to convey more than one of the lots created in the division of land. However, the question presented in your request re- quires an interpretation of an additional portion of Section 11-52-1(6), supra, not specifically discussed in the opinion to Honorable Russell B. Johnson, supra. Your request states: Our question is what would be the effect of a long term lease wherein the owner retained title to the property, but entered into a long term lease arrangement for development with another party? Should this be considered as a transfer of interest requiring a subdivision of the property. The answer requires consideration of the meaning of the phrases "for the purpose, whether immediate or future, . . . of building, development" as found in Section 11-52-1(6), supra. It is clear under this portion of Section 11-52-1(6) that a "subdivision" may be created without intent by the owner to sell any portion of the land divided. Thus, an owner of property could create a "subdivision" by lease, if for the purpose of building development. However, the rationale used in the Johnson opinion would be applicable to the lease of land, as well as the sale of land.] A "subdivision" is created when a person divides a tract of land; into two or more parcels with the intent to lease for building I development, either presently or in the future, more than one of such parcels. However, a subdivision is not created when a a person leases or offers for lease for building development , only one parcel which is a part of a larger tract owned by him. It is, therefore, the opinion of this office that leases of real property may, if for purposes of building development, create a "subdivision." If the person intends to lease both parcels for building development, a "subdivision" would be created. If the person intends to lease only one parcel and re-! tain the remainder of the large tract, a "subdivision" would not be created. Of course, the intent of the owners of the large tract is a question of fact which must be decided in each case. Hon. G. William Noble Page Four You do not ask, nor does this office by this opinion attempt to answer, whether the lessee of land might subse- quently create a "subdivision" of the leased land. Further- more, this opinion does not deal with questions which might arise should an owner of property begin building development on his property without the conveyance of any interest in the land to another nor does this opinion attempt to answer problems which might be presented if a property owner sold one parcel and leased another. I do hope that this response fully answers your question. If, however, this office may be of further assistance, please do not hesitate to call on us. Sincerely, ) (IAA Sack) CHARLES A. GRADDICK Attorney General CAG/cjs Honorable Russell B. Johnson Manager, City Planning Division Planning and Industrial Development Board CAPITOL I WILLARD W. LIVISIIMION war ASSISTANT MINH,* WINESU. I ASSISTANT ATTORNEYS GENERAL , • JOHN O. 1.00ICOUT DWIGHT W. 'ERASURE DWEN ORIDGCS • DAVID W. CLARK JEW L. COM PAUL T. OWN. JAMES T. NMKIIII g NICHOLAS O. TIMM smog* mats yt IIISOINNE D. MOM rowan N. isatimng,` ARSON D. PHELPS • JAWED L. Salaila .- IICANAWIE O. , STEMS . "Ha C. TYSON. Ill .3 JAMS W. Wee STATE OF ALABAMA OFFICE OF THE ATTORNEY GENERAL MONTGOMERY 4. ALABAMA July 28, 1960 MACDONALD GALLON ATTORNST GENERAL EDWIN STRICKLAND EMOTIVE ASSISTANT Dear Mr. Johnson: Reference is made to your request for an opinion of this office, under date of June 15, 1960, in which you ask that we define the term "subdivision" as used in Title 37, Chapter 16, Article 3, Code of Alabama 1940. 'Reference is also made to your letter of July 15, 1960, which reads in part as follows: "'Where an owner of a large lot or tract decides to divide the tract into two lots, does this constitute a "subdivision" and is he required to come before the planning commission for approval before subdividing and selling the parcel?' * * * * • at * Y A T "'A property owner having.a.farm or large acreage at the edge of a town or in the police jurisdiction area wishes to deed an acre or other sized tract to a son or daughter for a building site. Does this constitute a "subdivision" and does the owner need to come before the planning commission for approval? . . .'" Title 37, Section 786, Code of Alabama 1940, reads in part as follows: ft . . .'Subdivision' means the division of a lot, tract or parcel of land into two Hon. Russell B. Johnson page Two or more lots, plats, sites, or other di- visions of land for the purpose,.whether immediate or future, of: sale or of build- ing development. It includes resUbdi- vieion and, when appropriate to the'con. text, relates to the process of subdivid- ing or to the land or territory subdivided." I am of the opinion that a "sUbdivisionnis created when a person divides a tract of land'intotwo or more lots' with the intent to convey, either presently or in the future, more than one of such lots. However, a "subdivision" is not created by a person who sells or offers for sale only one lot which is a part of a larger tract owned by him. Therefore, the answer to the first question quoted herein above depends upon the intent of the owner of-the tract of land. If he intends to convey both lots, a ."sub- division" would be created. If he intends to convey only one lot and retain the remainder of 'his large tract, a "subdivision" would not be created. Of course, the intent of the owner of the large tract is a question of fact which must be decided in each case. For the reasons already stated herein, the second question, quoted herein above, is answered in the negative. Very truly yours, MACDONALD GALLION Attorney General By- PAUL T. GISH, JR. Assistant Attorney General PTGjr/ar