Agenda - Planning Commission - 01/06/2011

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44 November 25, 20101 Volume 41 No. 22 Zoning Bulletin prohibited subdivision of land that "the Commission finds to be unsuit- able for subdivision or development due to flooding which will rea- sonably be harmful to the safety, health, and general welfare of the ... in- habitants of the subdivision " — "unless adequate methods are formulated by the applicant and approved by the ... Commission ...." Montrose appealed to circuit court the Commission's decision to deny approval of the plat. Montrose argued that §§ 1.2.2, 5.1, and 5 2 2 (the "Subdivision Regulations ") were unenforceable because they were "un- constitutionally vague." Montrose contended that the Subdivision Regu- lations were "unconstitutionally vague" because: (1) they allowed for the exercise' of discretion by the Commission; and (2) failed to indicate to 'subdivision applicants what is required in order to lawfully subdivide real property. Montrose further argued that since there were no county regu- lations prohibiting development in areas subject to flooding, the Commis- sion had to permit Montrose to develop its property in such an area. The circuit court agreed with Montrose. On appeal, the Court of Civil Appeals also agreed that the Subdivi- sion Regulations were void because they were "impermissibly vague." The court found they: "[were] not reasonably definite and fixed in their requirements;" and "[gave] the Commission the discretion to treat simi- larly situated landowners differently." The Commission appealed. The Court's Decision: Judgment of court of civil appeals reversed. The Supreme Court of Alabama held that the Subdivision Regulations (SS 1.2.2, 5.1, and 5.2.2) were not unconstitutionally vague. The court agreed with the Commission that the Subdivision Regulations: "necessarily allow[ed] for discretion by the Commission regarding the extent the regula- tions apply to exceptional and unique conditions of ... flooding." The court explained that it could declare an ordinance void for vague- ness only if: "the [ordinance] is so indefinite that `a person of ordinary intelligence, exercising commonsense [could] derive no rule or standard at all from the ... language '; or "if it is so vague as to `authorize or encourage arbitrary and discriminatory enforcement ' An ordinance would not automatically be vague because it gave some discretion to the agency enforcing it (i.e., here, the Commission). If an ordinance gives no guidance or standard of conduct to the enforcing official then it may be found "unconstitutionally vague." However, "an ordinance may validly delegate some discretion in its enforcement where `discretion relates to the administration of [the agency's police powers] and is essential to the protection of the public morals, health, safety, welfare, etc. ' When an ordinance provides guidelines regarding those characteristics considered adverse to the community, a commission can deny preliminary approval based on adverse effect to health, safety, and general welfare upon a de- termination that specified conditions exist. 8 © 2010 Thomson Reuters