The County Line - Convention Issue 2002
Maintaining County Roads Within Municipal
Limits
Just when you think a problem
has been solved, you find you may have out-smarted yourself.
A few years ago, the Association
worked on legislation designed to address the problem
of maintaining county roads that lie within the limits
of municipalities. A perennial problem generating almost
constant legal and political difficulties between local
officials back home.
The statute, passed during
the 1995 regular session, attempts to outline what happens
when a city takes action to move its corporate boundary.
The legislation does not change the law regarding how
cities enlarge their boundaries, but only requires that
an expanding city do so with the knowledge that it must
take over the responsibility for maintaining the county
roads that lie within the new area.
There are, of course, two sides
to every story. But from the county perspective, the legislation
was designed to put municipalities on notice that if they
expand their boundaries, they must assume the maintenance
and responsibility for county roads in that area. Seems
only fair.
And, to the credit of the municipalities,
they did not quarrel with the specifics of the legislation
back in 1995. Now, they did not get out and drum up support
for the legislation, but they did not start a fire of
opposition either.
Passage of the legislation
came after several meetings with municipal representatives
and the swapping of language to make the new law as fair
as possible to both sides. This writing and rewriting
created a statute that is most difficult to read, perhaps
even for legal scholars.
But, the provisions of the
law have worked rather well. Cities that have expanded
since 1995 have done so knowing that they had to take
over the county roads within the new area. One must assume
that city fathers have pondered this responsibility when
making their decisions. In most cases the road issue must
not have been much of a road block since there have been
no reports of cities deciding against expansion because
they did not want to assume the maintenance responsibility
for the roads.
Now, the problem -- if you
call it a problem, maybe it is more like an opportunity
-- comes with the use of one word in that negotiated legislation.
The statute, found in Section
11-49-80, Code of Alabama, says "the annexation
of unincorporated territory into a municipality, after
July 7, 1995, shall result in the municipality assuming
responsibility to control, manage, supervise, regulate,
repair, maintain and improve" all roads within the area
annexed that were being maintained by the county (emphasis
added).
It's that word "annexation"
that some believe needs attention. The statute is working
well when cities annex areas into their boundaries; there's
no question about that. But there is another way that
an unincorporated area can become a part of a city. And
even though the result is the same -- property that was
outside the city is moved into the city -- there is a
small distinction that can generate difficulties for counties.
The other avenue for moving
unincorporated property into the boundary of a city is
when citizens vote to create a new municipality. This
process, known as "incorporation," falls outside the exact
wording of the statute, or so it seems.
But Blacks Law Dictionary makes
the distinction between incorporation and annexation rather
difficult to follow. The act of "annexation" is defined
as "A formal act by which a nation, state, or municipality
incorporates land within its dominion."
The use of the word "incorporates"
in the definition of "annexation" is interesting. "Incorporation"
of a new municipality is certainly a different legal process
than the "annexation" of unincorporated-land into an existing
municipality. But the affect of the two processes is the
same. And it seems to us that the affect is what the Legislature
was attempting to address.
The Legislature believed when
it passed this statute that whenever citizens who were
living outside a city became a part of a city, became
subject to municipal taxes and became subject to municipal
regulations, they could also expect the municipality to
take over the maintenance and regulation of the former
county roads inside that area. And again, that seems only
fair.
The distinction between annexation
and incorporation was not discussed -- or even considered
-- during the debate on the legislation. Honestly, no
one really ever mentioned it.
But for those citizens, the
distinction shouldn't really matter. If the property is
going to be inside the city, then the road responsibility
should follow.
And that, I guess, brings us
back to the beginning when we mentioned the frustration
of checking a problem off your "to-do" list only to find
it back on that list again.
As we look toward the 2003
regular session of the Alabama Legislature, this issue
may need to be back on the front burner. Maybe these new
"incorporated" municipalities need to be given time to
get their administrative feet wet before being required
to take over the roads or maybe there needs to be some
population trigger that kicks in to require the responsibility
to shift.
But whatever the mechanism,
it seems clear that the Legislature has already spoken
on its view -- it believes county roads should become
city streets when an area moves from unincorporated to
incorporated.
Now we've just got to address
the small difference -- if there really is one -- in wording
that didn't seem apparent when we were trying to solve
the problem back in 1995.
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