Memorandum
To: Gerald W. Jones
From: Robb McClary
Re: Subdivision Regulations
Date: December 30, 2009
Background
This is in response to your question of whether or not the county commission of a non-charter first class county can adopt subdivision regulations. The basic answer is yes, but only with a vote of the people.
In 1992 the voters discontinued planning and zoning, thus removing the county’s ability to impose subdivision regulations. In 2000 the voters did not approve planning and zoning. If Cape Girardeau County wishes to adopt subdivision regulations but not zoning regulations, it could do so. However, the adoption of planning (but not zoning) requires a favorable vote of the people. A planning-only question has never been presented to the voters.
I came to this conclusion after reviewing the various state statutes, the consultant’s report for Franklin County, the report “Going First Class” prepared by the Governmental Affairs Program of the University of Missouri, the paper prepared in 1996 by Morley Swingle (who did not address the subject) and in a conversation with Dick Burke of MAC. Mr. Burke discussed this issue with the MAC attorney. Mr. Burke, and the MAC attorney, agreed that a first class non-charter county can adopt subdivision regulations only after a favorable vote of the people to adopt planning only or planning & zoning. Finally, this report in not intended to be a legal opinion and if additional investigation is warranted, it should be directed to our legal counsel.
Summary and Conclusions
Counties are creatures of the state government and operate under a set of permissive state statutes. As such, counties have only that authority granted them by the state. In simple terms, planning is the regulation of the subdivision of land and establishment of setbacks on major highways while zoning is the regulation of land use. First class counties have three options to empower the county commission to adopt subdivision regulations under various sections of the Missouri statutes:
§64.060 RSMo. The county commission of a first class county having a charter form of government has the ability the adopt subdivision regulation prepared by the planning commission. No vote of the electorate is necessary to adopt planning & zoning in a first class county with a charter; a first class charter county automatically has planning and zoning. In fact, a charter cannot prohibit the county commission from adopting subdivision regulations. A charter cannot limit or restrict what the state allows.
§64.211. 1 RSMo. The county commission of a non-charter first class county can adopt subdivision regulations after adoption of planning and zoning after a vote of the people.
§64.800. 1. The county commission of a non-charter first class county can adopt subdivision regulation after adoption of planning after a vote of the people. A first class county can adopt zoning after a vote of the people pursuant to §64.845. 1. Therefore, a first class county can have planning or zoning or both.
Missouri Statutes excerpts
Following are excerpts of the various state statutes authoring first class charter counties and non-charter first class counties to adopt planning and zoning, subdivision regulations and building codes:
Note: Section 64.010 authorizes the county commission of a first class charter county to have planning and zoning.
County planning commission authorized (first class charter counties).
64.010. In all counties of the first class, except counties of the first class not having a charter form of government, the county commission is authorized and empowered to provide for the preparation, adoption, amendment, extension or carrying out of a county plan and to create by order a county planning commission with the powers and duties as set forth in sections 64.010 to 64.160.
Note: Section 64.600 RSMo authorizes the county commission of a first class charter county to adopt subdivision regulations.
Regulations governing subdivision of land--bond (certain first class counties).
64.060. The county planning commission may prepare and adopt regulations governing the subdivision of land, which regulations may provide for the proper location and width of streets, building lines, open spaces, minimum width and area of lots, street grading and paving, sewers, water and other utilities, which are necessary to avoid the congestion of population and to protect the public health, safety or the general welfare. Such regulations shall be adopted only after public hearing has been held thereon at any one place in the county, public notice of which shall be given in the same manner as provided for hearings in section 64.040. Such regulations shall become effective after their approval and adoption by order of the county commission and may after their adoption be amended by the county commission. In lieu of the immediate completion or installation of the improvements required under the regulations adopted, the county zoning enforcement officer shall accept bond for the county in an amount and with surety and conditions prescribed by the county general attorney and approved by the county commission. Such bond shall provide and secure to the county the actual construction of such improvements and utilities within the period prescribed by said regulations.
Note: Section 64.170 authorizes the county commission of certain first class counties to adopt a building code.
County commissions control construction--issue building permits--Jefferson County, separate provision--vote required for adoption of a building code, when.
64.170. 1. For the purpose of promoting the public safety, health and general welfare, to protect life and property and to prevent the construction of fire hazardous buildings, the county commission in all counties of the first and second classification, as provided by law, is for this purpose empowered, subject to the provisions of subsections 2 and 3 of this section, to adopt by order or ordinance regulations to control the construction, reconstruction, alteration or repair of any building or structure and any electrical wiring or electrical installation, plumbing or drain laying therein, and provide for the issuance of building permits and adopt regulations licensing persons, firms or corporations other than federal, state or local governments, public utilities and their contractors engaged in the business of electrical wiring or installations and provide for the inspection thereof and establish a schedule of permit, license and inspection fees and appoint a building commission to prepare the regulations, as herein provided.
2. Any county which has not adopted a building code prior to August 28, 2001, pursuant to sections 64.170 to 64.200, shall not have the authority to adopt a building code pursuant to such sections unless the authority is approved by voters, subject to the provisions of subsection 3 of this section. The ballot of submission for authority pursuant to this subsection shall be in substantially the following form:
"Shall ...... (insert name of county) have authority to create, adopt and impose a county building code?"
â ã YES â ã NO
3. The proposal of the authority to adopt a building code shall be voted on only by voters in the area affected by the proposed code, such that a code affecting a county shall not be voted upon by citizens of any incorporated territory.
Note: Section 64.211.1 allows a county commission of a first class non-charter county to adopt planning and zoning.
Creation of county planning board--election--ballot form.
64.211. 1. The county commission of any county of the first classification not having a charter form of government and not operating a planning or zoning program under the provisions of sections 64.800 to 64.905 may, after approval by vote of the people of that county, provide for the preparation, adoption, amendment, extension and carrying out of a county plan. Upon adoption of the county plan there shall be created in the county a county planning board with the powers and duties as set forth in sections 64.211 to 64.295.
2. The county commission may, at any general election, present to the voters of the county the question of the establishment of county planning. The county clerk shall cause to be printed a ballot containing the following:
Shall county planning be established? â ã YES â ã NO To vote in favor of the question place an "X" in the box opposite the word "Yes". To vote against the question place an "X" in the box opposite the word "No".
3. If a majority of the votes cast at the election is in favor of county planning, the county commission shall create by order entered of record a county planning board to proceed with a program of county planning as provided in sections 64.211 to 64.295.
Note: Section 64.214 allows the county commission of a first class non-charter county to adopt subdivision regulations after adoption of planning and zoning pursuant to Section 64.211.1 above.
Subdivision regulations, contents, how adopted--bond for compliance (noncharter first class counties).
64.241. The county planning board may prepare and adopt regulations governing the subdivision of land, within the unincorporated area, including all plats or proposed streets prepared for record, and all division of land or lots into two or more parts, except the division of land resulting in tracts or lots, the smallest of which is an area of five acres or more, or ten acres or more in any county having a population of at least two hundred seven thousand. The regulations may provide for the proper location and width of streets, building lines, open spaces, minimum width and area of lots, access to major streets, street grading and paving, drainage or utility easements, sewers, water and other utilities, which are necessary to avoid the congestion of population, and to protect the public health, safety or the general welfare of the inhabitants in the unincorporated portions of the county. The regulations shall be adopted by the board only after public hearing has been held thereon at any one place in the county, public notice of which shall be given in the same manner as provided for hearings in section 64.231. The regulations shall become effective after their approval and adoption by order of the county commission, and may after their adoption be amended by the county commission after public hearing and recommendation by the board as provided by section 64.231. In lieu of the immediate completion or installation of improvements required under the regulations adopted, the county auditor shall accept bond for the county in an amount and with surety and conditions prescribed by the county commission. The bond shall provide and secure to the county the actual construction of such improvements and utilities within the period prescribed by the regulations.
Note: Section 64.800 allows the county commission of a first class non-charter county to have only planning.
Creation of county planning commission--election.
64.800. 1. The county commission of any county of the first class not having a charter form of government, or of any county of the second, third or fourth class may, after approval by vote of the people of the county, create a county planning commission to prepare a county plan for all areas of the county outside the corporate limits of any city, town or village which has adopted a city plan in accordance with the laws of this state.
2. The county commission may make an order to present to the voters of the county the question for the establishment of county planning.
3. The question shall be submitted in substantially the following form:
Shall county planning be adopted?
4. If a majority of the votes cast on the question be in favor of county planning, the county commission shall create by order entered of record a county planning commission to proceed with a program of county planning as provided in sections 64.800 to 64.840.
Note: Section 64.825 allows the county commission of a first class non-charter county to adopt subdivision regulations after the approval of only planning pursuant to Section 64.800 above.
Regulation of subdivisions in unincorporated areas--procedure--bonds.
64.825. The county planning commission may also prepare, with the approval of the county commission, as parts of the official master plan or otherwise, sets of regulations governing subdivisions of land in unincorporated areas, and amend or change same from time to time as herein provided, which regulations may provide for the proper location and width of streets, building lines, open spaces, safety, recreation, and for the avoidance of congestion of population, including minimum width and area of lots. Such regulations may also include the extent to which and the manner in which streets shall be graded and improved, and the extent to which water, sewer and other utility services shall be provided, to protect public health and general welfare. Such regulations may provide that in lieu of the immediate completion or installation of the work, the county planning commission may accept bond for the county commission in the amount and with surety bond, cash bond, cash deposit with the county treasurer, letter of credit, or certificate of deposit and conditions satisfactory to the county commission, providing for and securing to the county commission the actual construction of the improvements and utilities within a period specified by the county planning commission, and the county commission shall have power to enforce the bond, surety bond, cash bond, cash deposit with the county treasurer, letter of credit, or certificate of deposit by all proper remedies. The subdivision regulations shall be adopted, changed or amended certified and filed as provided in section 64.815. The subdivision regulations shall be adopted, changed or amended only after a public hearing has been held thereon, public notice of which shall be given in the manner as provided for the hearing in section 64.815.