USA – ALABAMA Law and Practice Contributed by: Adam J. Sigman, Crystal H. Walls, Nathan Stotser, Katie Sinclair and Courtney Dow, Dentons
Municipal Approvals, Public Hearings and Third- Party Participation Depending on the project, approval from various municipal departments may be required. If a project requires a change to the zoning code or road vaca - tion, etc, public hearings are held where third parties may comment and object. Planned unit developments are sometimes used to facilitate project development. The process of obtaining permits and approvals var - ies between local authorities, and interested parties should consult the relevant authority for further details. Planning and Zoning Restriction Enforcement The first governmental enforcement mechanism used is refusal by the local planning department to issue a building permit. After issuance, restrictions are enforced by an inspector appointed by the designated zoning official. Private parties may also restrict development or use through restrictive covenants that run with the land, being agreements or “promises relating to real prop - erty that are created in conveyances or other instru - ments” ( Collins v Rodgers , 938 So 2d 379, 385 n 15 (Ala. 2006)). Restrictive covenants are typically memorialised through restrictive language in a conveyance instru - ment, an express declaration of covenants, condi - tions, and restrictions created by a single property owner, or an agreement for covenants, conditions and restrictions agreed to by two or more property owners. Any of these may be recorded in the probate office of the county where the encumbered property is located. Such covenants may be enforced by the parties or their successors in title; however, Alabama follows the general rule that courts “strictly construe restrictive covenants are not favoured in the law and, therefore, that they will be strictly construed, with all doubts resolved, in favour of the free and unrestricted use of land and against the covenants” ( Whaley v Har- rison , 624 So 2d 516, 518 (Ala. 1993)).
construction primarily through zoning ordinances and subdivision regulations. Property owners and devel - opers should research applicable planning and zoning regulations by ordering a zoning report and communi - cating directly with the relevant municipality. Alabama business licence fees may also vary depending on the property’s location and use. See 8.3 Municipal Taxes . Regulatory Authorities At the local level, municipal corporations (cities and towns) may enact zoning laws and regulations through the creation of a comprehensive zoning ordinance, which must be compatible with the enabling statute (Section 11-52-1 et seq). Zoning laws generally des - ignate areas into business, industrial and residential districts, and control the type, character, kind and use of structures and improvements in such designated zones or districts (Section 11-52-70). County govern - ments may also enact zoning ordinances and build - ing codes for flood-prone areas outside municipalities (Section 11-19-3). Zoning laws typically control: • the permitted shape, proportion and dimensions of lots and structures located thereon; • the use of such structures; • setback requirements; and • parcels uses in designated zones or areas. Private restrictive covenants in the property’s chain of title may impose additional controls on development or refurbishment of property. For certain redevelop - ments, the Alabama Department of Environmental Management (ADEM) may have recorded use and development restrictions into the chain of title. These ADEM-imposed controls operate alongside local zon - ing laws, which are administered by the local munici - pal planning commission and must be consistent with the local comprehensive plan (Section 11-52-3). 4.2 Development Process, Challenges and Enforcement Developers typically begin the process of applying for permits by engaging consultants and civil engineers for guidance on local customs, contacting the local planning department, and reviewing applicable zoning laws before applying for permits.
734 CHAMBERS.COM
Powered by FlippingBook