Alabama Attorney General Opinion 1979-0078

OFFICE OF THE ATTORNEY GENERAL rig 000 . V Co 1411) CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA LOOS I.. NAL! 34-7f AOMIMI 1 VS SVILIMMO WORTH UNION SSISS *WEN 1101. IISS-111•0 WILLIAM N. CaSCUTIvS ASSI s. CMMPASS JANIE NOSLCS at...NISTA ATin ASSISTANT Mr. James F. Brown, Chairman Marshall County Commission P. 0.0ox 610 Guntersville, Alabama 35976 Counties - Municipalities - Planning and zoning - County has authority to regulate subdivision within cities in county. Dear Mr. Brown: Your inquiry of February 7, 1979 relating to planning and zoning regulations in Marshall County has been received and considered. You have requested opinion on the following questions: 1. Does the county, in fact, have the authority to adopt and inforcetsic] subdivision regula- tions? Our regulations state the following: The Marshall County Commission will not accept the roads and streets for maintenance in any subdivision unless the specifications as prescribed herein are complied with. CHARLES A. GRADDICE Attorney Genera by- PP Rand h G. Lurie Assistant Attorney Gen3ral Mr. James P. Brown, Chairman Marshall County Commission 2. Does the county have the authority to inforce (sic] the regulations within the city limits of those cities within the county's jurisdiction? The cities regulations, in some cases, are not as stringent as those adopted by the county. Therefore, several of the local developers and cities express the opinion that they feel the county has no authority to impose the county's regulations upon them. Their argument - the county does not maintain city streets. The two questions are answered in the affirmative. This office, in an opinion to Mr. Michael D. Wilson, Planning Director, South Central Alabama Development Commission, Montgomery, Alabama, dated August 15, 1977, copy of which is attached for your convenience and guidance, considered the matters presented by you and the conclusions presented in that opinion are re-affirmed in this opinion. In the event you desire further advices, please advise and give in detail the matters upon which you which to be advised. Sincerely, RGL:cd att: 46 1714E- ATTORNEY GENERAL STATE OF ALABAMA • MONTGOMERY, ALABAMA 3613 0 WILLIAM J BAXLEY ATTORNEY GENERAL August 15, 1977 GEORGE L. KECK DEPUTY ATTORNEY GENERAL L B SULLIVAN EXECUTIVE ASSISTNN- WALTER 5 TURNER ASSISTANT ATTORNEY GENERAL TOM CORK CONFIDENT:EL ASSISTANT JACK O. SHOWS Cr:TE.: INVESTIGATOR Mr. Michael D. Wilson Planning Director South Central Alabama Development Commission 2815 E. South Boulevard Montgomery, AL 36116 Municipalities - Subdivisions - Planning and Zoning County engineer has final deci- sion in approval of plat for subdivision. Dear Mr. Wilson: I am replying to your request for an opinion from this of- fice concerning development of subdivisions. You asked the following questions concerning Title 37, Sec- tion 797, Code of Alabama 1940, Recompiled 1958: 1. Who shall have the authority to mark the final decision in matters of conflict between deci- sions of the planning commission and county engineer over the disposition of subdivision plats? 2. What action should be taken if the county en- gineer or designated alternate fails to re- spond to requests for his approval of the plats submitted to the planning commission? -2- The pertinent part of Title 37, Section 797, supra, reads: The territorial jurisdiction of any municipal planning commission over the subdivision of land shall include all land located in the municipality and all land lying within five miles of the corporate limits of the municipality and not located in any other municipal- ity, except that, in the case of any such non-municipal land lying within five miles of more than one municipal- ity having a planning commission, the jurisdiction of each such municipal planning commission shall terminate at a boundary line equidistant from the respective corporate limits of such municipalities;...No map or plat of any subdivision shall be recorded, and no property shall be sold referenced to such map or plat, until and unless it has been first submitted to and approved by the county engineer, or in his ab- sence, the acting county engineer of such county, who shall examine same for compliance with the specifications and regulations of the county governing body of such counties, and, if in com- pliance, shall note his approval on such map or plat by noting thereon "approved", giving the date of such approval and signing same in his official capacity. Where any subdivision lies within the extraterritorial planning jurisdiction of any municipality having exercised said extraterritorial jurisdiction, the re- quirement for approval of improvements in said subdivision by the county engin- eer shall in no way diminish, waive, or otherwise lessen the requirements of such municipality. The more strict require- ments, whether of the municipality or the county, must be complied with by the developer. Approval by the county engin- eer shall in no way constitute approval in lieu of or on behalf of any municipal- ity with respect to subdivisions lying -3- within its extraterritorial planning jur- isdiction. All such maps or plats must be first submitted to and approved by the municipal planning commission or other appropriate municipal agency exercising jurisdiction over any subdivision lying within the extraterritorial planning jur- isdiction, and following such approval by such municipal planning commission, must then be approved by the county en- gineer, or, in his absence by the act- ing county engineer. To answer your first question, from a reading of the above statute it is the opinion of this office that it is the approval of the county engineer which is the final decision in conflicts between the municipal planning commission and the county engineer in the matter of subdivision planning in the extrajurisdiction territory of the commission. However, it should be noted that the statute states that all of the requirements of the planning com- mission be met before the developer can record the plat or sell property. If - the county engineer fails to perform his duty of approv- ing maps and plots of subdivisions to be developed, it will be necessary to have the circuit court of that county issue a writ of mandamus ordering him to do so. If our office can be of further assistance to you, please do not hesitate to let us know. Very truly yours, WILLIAM J. BAXLEY Attorney General By-- Lynda F. Knight Assistant Attorney General LK:bs