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In Legal Terms
- Fall Issue 2004
Counties Responsible for Implementing Laws
Every year, the ACCA staff and county officials and employees work diligently to protect against the enactment of new laws which will negatively impact on county government and its ability to best provide for its constituency. Each year, we also work for the passage of legislation which will assist county officials and employees in their efforts to provide services and protection to county residents. Working together as a team, we have been very successful in this effort during my eight year tenure at the Association, and we all hope that that success will continue into 2005 and beyond.
Passage of good legislation is just the first step in the process, however. Once the new laws go into effect, it is incumbent upon county officials and county employees to ensure that the laws are properly implemented in and utilized by the county to reap the benefits the laws are intended to provide. This forum certainly doesn't provide enough space to mention every law passed in recent years, and discuss what counties should be doing to make sure that they are properly enforced, but here are a few illustrations of areas where I worry that counties may not be getting all they can under Alabama law. I hope these examples will be helpful to the counties, and will inspire officials and employees to research other laws affecting county government to make sure that they are protecting their "legal rights".
In 1995, the Alabama Legislature amended Code of Alabama 1975, § 11-49-80 to provide that, after July 7, 1995, when a municipality annexes property in which the county has been maintaining a road for at least one year, the municipalities must assume responsibility for that road (or roads) following the annexation. There are procedures which are supposed to be followed to ensure that the county consents to the annexation of the road and that the municipality assumes responsibility, but there is no discretion on the part of the municipality to decline to "take over" the roads. The law requires that they accept responsibility if the road is part of the annexed property.
Hopefully, most county engineers are aware of this statutory provision and have in place procedures to ensure that municipalities assume the responsibility for these roads. However, I suspect most municipalities don't "voluntarily" take them over as provided in the law. The burden is on the county to make sure this law is properly applied.
In 2004, the Association and counties worked to address another problem of road responsibility by amending legislation addressing the procedures for incorporation of a new municipality. Act No. 2004-504 amends prior law regarding incorporation, and in addition to other changes, provides at Code of Alabama 1975, § 11-41-1, that "any municipality incorporated under the procedures set out in this section shall assume responsibility [for] all public streets or parts thereof lying within the incorporated limits no later than 24 months after the incorporation is finalized." This law, which took affect on August 1, 2004, will correct prospectively the problem counties currently encounter when a new town incorporates, since the law as previously written, provided that county roads within a newly incorporated town remained the responsibility of the county even after incorporation. This law should be very beneficial to counties, but I feel sure that newly-incorporated towns will not voluntarily take responsibility for these roads. Counties will need to watch carefully for new incorporations, and let the municipal officials know from the outset that they must take over the roads within 24 months, and that the county will enforce that provision of the law.
Both of the above-referenced sections allow for counties and municipalities to enter into agreements regarding responsibility and maintenance of roads that vary in whole or in part from the procedures set out in the law. Of course, counties are encouraged to work with municipal officials to reach a mutually beneficial agreement on maintenance and control of roads in the municipality. However, counties need to understand and enforce their rights - especially since they worked so hard to see that these statutory protections exist in Alabama law.
During my first year working with the Legislature as a member of the Association staff (1997), the ACCA succeeded in securing substantive changes to the county subdivision regulation law through its legislative efforts. As amended, Code of Alabama 1975, 11-24-1 et seq. authorizes counties to implement regulations affecting any subdivision development in the county, and provides effective enforcement tools to ensure that developers comply with the county's rules. There is no requirement that counties adopt subdivision regulations, but in any county where there are concerns about developments with poorly constructed roads and improper drainage systems, the county would be wise to use this statutory vehicle. Having said that, the regulations will only help prevent problems if they are utilized and enforced once adopted. The law as written requires the developer to have his or her plans approved by the county commission before any lots are sold, and authorizes the county to inspect the development to ensure that the developer is in compliance with the county's regulations. The county can legally stop construction through a court order when a developer is not in compliance. This legislative authority has been used successfully where the county has been willing to force compliance through inspection and, if necessary, court action. But frequently the county must take the initiative to require that local developers follow the law.
One final example - for the last several years, the ACCA has worked on legislation to create a statewide tax for counties on materials severed from the ground and sold in the state. The statewide severance tax was finally passed in 2004, and provides a 10¢ per ton tax on many severed materials sold as tangible property. See, Act No. 2004-629. Counties receive all of the proceeds from this tax. However, the tax is collected and distributed by the Alabama Department of Revenue. All counties should have received a memo from the ACCA office requesting that they identify what pits or quarries are located in their county to assist the Revenue Department in identifying companies required to remit the tax. While I think most counties have turned in this information, if your county has not, you should do so as soon as possible. Additionally, I would recommend that counties monitor carefully what revenue they receive from the new severance tax. It is unclear at this point what efforts the Revenue Department will expend to collect and audit this new tax. Moreover, it is unclear whether companies responsible for remitting the tax realize they must pay it, and understand how to properly remit. Counties will need to protect their own interests (and revenues) with regard to this new tax they worked for several years to obtain. In fact, it would probably be a good idea for counties to monitor the collection and receipt of any tax revenues it doesn't directly collect.
I know that the suggestions laid out in this article place a lot of responsibility on county officials and employees - and I know it is not possible to be aware of every law affecting county government and how the county can and should protect itself. However, keeping abreast of legislative activities during the session and keeping abreast of information provided to you by the ACCA staff will assist in this effort. Please make every effort to read the legislative reports sent from us by U.S. Mail and e-mail, and make a habit of checking the ACCA web site on a regular (i.e. daily) basis. Also, attend your district meetings to find out what is in store for 2005. In addition, contact the ACCA office to discuss concerns and problems in the county - we may be able to guide you to laws in place that might help you out. And finally, stay in touch with your county attorney and insist that he or she stay informed and updated about the laws that impact county government. As I said at the outset, counties have made tremendous legislative progress in recent years, and every county should be using these new laws to their advantage. We still have a long wish list of legislative items we would like to have enacted. And while we work toward passage of those new items, let's be sure we understand and effectively use what we already have.
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