Alabama Advisory Opinions August 21, 1997: AGO 1997-264 (August 21, 1997)

AGO 1997-264.

Dear Representative Papucci:

This opinion of the Attorney General is issued in response to your request.

Could such de-annexation legislation be accomplished by a "local" bill (applying to Limestone County), or would this matter have to be addressed in a general, statewide bill, since all three cities in question lie in more than just one county?

Your request states that the Limestone County Commission has passed a resolution requesting the Legislature to de-annex all portions of the cities of Decatur, Huntsville, and Madison which lie inside Limestone County.

Constitution of Alabama 1901, § 104 permits the passage of a local law by the Legislature to alter or rearrange the boundaries of a city, town, or village. Such a local law may include more than one political subdivision. Constitution of Alabama 1901, Amendment 341.

By enactment of a local law, the Legislature may alter the boundaries of the cities of Decatur, Huntsville, and Madison by removing from the corporate limits of those municipalities all territory located within the boundaries of Limestone County.

If the Legislature were to consider a referendum to resolve this issue (either a binding or a nonbinding referendum), could that be accomplished by a "local" bill (applying to Limestone County), or would this have to be addressed in a general statewide bill?

In Opinion of the Justices, 486 So. 2d 1287, 1289 (Ala. 1986), the Supreme Court held that the requirements of Constitution of Alabama 1901, § 106, are not met where a pending local bill by its terms immediately affects any municipality, whose corporate limits or boundaries include lands outside of Limestone County, where that municipality intends to extend its corporate limits or boundaries in Limestone County. In order to avoid the prohibitions of Section 106 and Amendment 341, before passage of any local bill attempting to reduce the corporate limits of municipalities located both within and without the boundaries of Limestone County, or to provide for a binding or nonbinding referendum on this issue, published notice of the intention to apply for such a local law must be given in all counties where affected municipalities are located. Here that would include publishing in Limestone, Madison, and Morgan Counties.

The Legislature may provide, by local law, for a binding or nonbinding referendum on whether the corporate limits of three municipalities, lying partially within one county, should be reduced by removing from those corporate limits all territory lying within Limestone County, if notice is given as required by Constitution of Alabama 1901, Amendment 341, in all the counties affected.

What are the legal rights of property owners who do not wish their land to be de-annexed, if the Legislature passed a bill to de-annex their land anyway? Does the Legislature have this authority to de-annex homes, property, businesses, etc., even against the wishes of the property owners directly affected? Could this be considered a "taking?" If such de-annexation legislation were to raise homeowners' insurance rates, lower appraised property values, alter school attendance zones, interfere with established zoning laws, and so forth, do the property owners affected have any legal recourse? Can the Legislature de-annex property owners who have been within city limits for several years, and do not wish to be de-annexed?

The power of the Legislature, except as restrained by the Constitution, is supreme in the enactment of statutory law, and it has plenary power to deal with subordinate agencies of the state such as counties and municipal corporations. Trailways Oil Co. v. City of Mobile , 122 So.2d 757, 760 (Ala. 1960).

Whether the exercise of this plenary power would be considered a "taking" depends on a number of factors which have not yet been identified or enumerated. We are unaware of any case in Alabama which would be controlling on this issue.

In Esposito v. South Carolina Coastal Council, et al. , 939 F.2d 165, 170 (4th Cir. 1991), the court, analyzing opinions of the Supreme Court, concluded that "neither diminution in property value . . . nor '. . . substantial reduction of the attractiveness of the property to potential purchasers' . . . will suffice to establish that a taking has occurred. . . ." (Citations omitted.)

Also, in the recent case of Joyner v. City of Prattville II , Ms. 1951263, dated June 13, 1997 (Ala. 1997), the Supreme Court of Alabama found that the City of Prattville was not barred by the principles of equitable estoppel from ceasing to provide services in its police jurisdiction, provided no license fee collection was conducted in the police jurisdiction.

The Legislature has plenary power over subordinate agencies of the state such as cities and counties. It is arguable that the exercise of that power to alter the corporate limits of municipalities by reducing their corporate limits constitutes a taking, but because of the lack of case law in this state no opinion can be given at this time.

If this Office can be of further assistance, please contact Carol Jean Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

BP/CJS/jho

P8.97/OP