Alabama Attorney General Opinion 1979-0166

OFFICE OF THE ATTORNEY GENERAL 19- OO ILQ,Co LEE L. HALE DEPUTY ATTORNEY GENERAL VVILLOAM M. BEKURS. JR EXECUTIVE ASSISTANT W S. TURNER CHIEF ASSISTANT ATTORNEY JANIE NOSLIES ADMINISTRATIVE ASSI CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA APR 26 1979 ADMINI 1 VE BUILDING 54 NORTH UNION 31110 AREA MEI. 034-SISO Honorable William M. Bouldin City Attorney City of Russellville Post Office Box 940 Russellville, Alabama 35653 Municipalities--Russellville-- Planning and Zoning Municipality may, by ordinance, prohibit utility boards from supplying utilities to structures that have been converted to uses which violate the City Zoning Ordinance. Dear Mr. Bouldin: The Office of the Attorney General has received the opinion request of the City of Russellville regarding the enforceability of certain provisions of the City Zoning Ordinance. Section 60.4 of the Zoning Ordinance states: "No structure shall be converted to a use prohibited within the district it is located. The City Clerk is here- by prohibited from issuing a privilege license for the operation of such con- verted use. It shall be unlawful for any city utilities including water, gas, and sewage to be continued or such service to be continued to any land or building used in violation of this ordinance". Hon. William M. Bouldin Page Two Your request presents the following information: All utilities in the City of Russellville are supplied by specially incorporated boards, which boards are incorporated pursuant to the provisions of Title 37, Section 394-402, Code of 1940. The electricity supplied by the Electrical Board of the City of Russell- ville is generated by the Tennessee Valley Authority. It is noted that while "electricity" is not specifically enumerated in Section 60.4 of the City Zoning Ordinance, electricity is sup- plied by a "city utility." The question presented is: Can the City of Russellville prohibit these specially incorporated public utility boards from supplying utilities to structures that are built or being used in violation of the zoning ordinance. Your question, as it related to a structure being used in violation of the zoning ordinance, is to be answered in the affirmative. Since Section 60.4 deals only with a "converted use" this office has insufficient information to answer your inquiry as it relates to new buildings. The first consideration must be whether the City of Russellville may, by ordinance, prohibit those specially incorporated boards which are specifically enumerated in Section 60.4 of the City Zoning Ordinance—water, gas and sewage--from supplying utilities to struc- tures that are being used in violation of the zoning ordinance. Under Code of Alabama 1975, Section 11-52-70, a municipal corpora- tion is authorized to zone territory within its corporate limits. Coupled with this grant of authority is the additional authority found in Code of Alabama 1975, §11-52-76 to adopt ordinances neces- sary to the enforcement of zoning regulations. It is, therefore, apparent that the City of Russellville may prohibit those specially incorporated boards enumerated in the ordinance from supplying utilities to structures that have been converted to a use which violates the zoning ordinance. Hon. William M. Bouldin Page Three Your request presents an additional point for consideration which is whether the City may prohibit the Electrical Board from supplying electricity to any building being used in violation of the City Zoning Ordinance. Your special concern arises from the fact that "electricity" is not enumerated in Section 60.4 of the Ordinance: However, it is apparent that the phrase "any city utilities" is broad enough to and does include electricity fur- nished by the Electrical Board of the City of Russellville. It is to be noted that this office is unaware of any contractual agreements between the Electrical Board of the City of Russell- ville and the Tennessee Valley Authority which would be relevant to a determination of this matter. It is, therefore, the opinion of this office that the City of Russellville may, by ordinance, prohibit all specially incor- porated municipal boards from supplying utilities to structures that have been converted to uses which violate the City Zoning Ordinance. I do hope that this response sufficiently answers your inquiry. If, however, we may be of further assistance please feel free to call on us. Yours truly, CHARLES A. GRADDICK Attorney General By- CAROL JEAN SMITH Assistant Attorney General CJS/dwm