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In Legal Terms
-Spring Issue 2006
Subdivision regulations strengthened by Legislature
In 1997, the Alabama Legislature passed important legislation to strengthen the law on county subdivision regulations. This law made clear that a county's regulations applied to all developments whether lots were to be made available for sale or for lease, and it required county commission approval of all proposed plats before any lots were sold or leased. The law also allowed counties to charge inspection fees and established fines for failure to comply with the law.
This legislation certainly helped to improve the quality of subdivisions being developed in unincorporated areas. However, over the years, it became apparent that enforcement of the law was a major problem. Many times the county would not become aware of a new subdivision development until it was too late to bring court action to enjoin work on a project which had not been properly approved by the county commission. Additionally, the fines were set so low that some developers proceeded without county approval because payment of the fines was cheaper than the cost of compliance.
Over the last few years, a committee of county engineers worked to develop ideas on how to improve the law to address enforcement, and in 2006, the ACCA included proposed legislation to amend the 1997 law in its legislative program. A bill to address these concerns was introduced on the first day of the 2006 Legislative Session, and on March 7, 2006, Senate Bill 61 was enacted into law as Act No. 2006-227. Thanks to the diligent efforts of our excellent sponsors, Senator Bobby Denton and Representative Mac Gipson, this bill was given priority attention and became law well before the log-jam of bills waiting to pass in the waning days of all legislative sessions. So, while other groups were still struggling to bring their issues to a final vote by the Legislature, the ACCA was already working on how to implement this new law. Again, a committee of engineers headed by ACEA Vice President Philip Widner was created for this purpose and hopes to have a final report of suggested procedures available in early May. Once fully implemented, this new law should greatly assist counties in more effectively enforcing this very important law.
Under the new law, the developer must still apply to the county commission for approval of the plat prior to the sale or lease of any lots. However, it clarifies that the proposed plat must be submitted for approval prior to any development or construction. The law still requires the county commission to approve the proposed plat if the county engineer determines that it meets the requirements of the county's subdivision regulations, and still requires that notice of the application be sent to all affected landowners and utilities. Now, however, the developer must also obtain a "permit to develop" issued by the county engineer at the time of approval of the proposed subdivision plat and prior to any development. Additionally, following completion of the subdivision, the developer must submit the final plat to the county engineer for signature prior to filing the plat in the probate office. Act No. 2006-227 continues to exempt transfers of land to family members from the requirement to comply with the county's subdivision regulations. However, it is now clear that if a family member subdivides and transfers any of his or her "portion" of the land to a non-family member, the law will then apply.
Under the amendatory act, failure to obtain the permit to develop or to otherwise comply with the law is a violation for which fines can be assessed against the developer through the issuance of citations by a county license inspector. The fines for noncompliance with any provision of the law, including failure to obtain the permit, are set at $1000 per lot sold, offered for sale, transferred, or leased, and they can be doubled if the developer does not come into compliance within 30 days of the issuance of the original citation.
Previously, fines for violations ranged from $250 to $1000 per lot, and were only assessed by order of the court. However, through what is perhaps the most important change in the subdivision regulations law under the new Act, the county commission can now authorize the license inspector to issue citations for failure to properly obtain the permit to develop or to otherwise comply with the law. This is significant because the county will now be able to enforce the law with county personnel and without having to first file an action in court. Existing license inspectors will be able to investigate for violations while enforcing other licensing laws and can issue citations in the same manner as for other violations of law. Additionally, the county can appoint personnel in the engineer's office as license inspectors and authorize those personnel to cite developers for failure to properly obtain the permit or comply with other provisions of the law. It is still possible that the county will end up in court on these issues, but developers may choose instead to pay the fine and come into compliance to avoid extensive court action. In any case, the ability to "write tickets" with county personnel will allow for more expeditious resolution of noncompliance issues.
Under Act No. 2006-227, the county commission retains the authority to bring a civil action to enjoin a developer from proceeding on a subdivision project without complying with the county's subdivision regulations. And, it is now possible to bring action to compel the developer to comply with the county's regulations even if the work on the subdivision has already been completed. However, the ability to assess fines and penalties against developers through citations issued immediately upon discovery of a violation and to double fines for continued noncompliance should have a significant impact on ensuring that developers properly apply to the county before initiating any subdivision development in the unincorporated areas of the county. And it should have a significant impact on the county's ability to ensure that this is the case.
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