Opinion No. 80-107 (1980) Ag ( 1980 )

The Attorney General is in receipt of your request for an opinion wherein you ask, in effect, the following question: Do the notice requirements specified in 11 O.S. 43-104 [11-43-104] (1978) and 11 O.S. 43-106 [11-43-106] (1978) have to be met when towns for the first time are establishing zoning districts? The building and zoning laws for municipalities are found at 11 O.S. 43-101 [11-43-101] et seq. (1978). The general notice requirements which pertain to building and zoning in municipalities are found at 11 O.S. 43-104 [11-43-104] (1971). More specific requirements are found at 11 O.S. 43-106 [11-43-106] (1971). Title 11 O.S. 43-104 [11-43-104] (1978), "Notice and Public Hearing Proposed Regulation," states in part as follows: "Parties in interest and citizens shall have an opportunity to be heard at a public hearing before any regulation, restriction or district boundary shall become effective. At least fifteen (15) days' notice of the date, time and place of the hearing shall be published in a newspaper of general circulation in the municipality." The statute, 11 O.S. 43-104 [11-43-104] (1978), is general and deals with notice requirements to be issued to the public before any public hearing can occur concerning municipal zoning regulations. Title 11 O.S. 43-106 [11-43-106] (1978) requires additional and special notice requirements which are pertinent to specific situations. Title 11 O.S. 43-106 [11-43-106] (1978) states as follows: "A. In addition to the notice requirements of 11 O.S. 43-104 [11-43-104], notice of a public hearing on any proposed zoning change shall be given twenty (20) days prior to the hearing by mailing written notice by the secretary of the planning commission or by the municipal clerk, if there is no planning commission, to all owners of property within a three hundred (300) foot radius of the exterior boundary of the subject property . . . ." Also, in Part A of 11 O.S. 43-106 [11-43-106] (1978), there are provisions for legal description of property, zoning classification, and date, time and place in which the public is to be held. Part B of 11 O.S. 43-106 [11-43-106] (1978) states in part: "B. In cases of proposed zoning reclassifications, the governing body may require additional notice of the public hearing by posting a sign on the property affected by the proposed zoning reclassification. The sign and the lettering thereon shall be of sufficient size so as to be clearly visible and legible from the public street or streets toward which it faces . . . ." Part B goes further to specify what the notice shall contain. Thus, upon a clear reading of the statutes in question, it can be seen that the public must be given notice before there is any rezoning pursuant to 11 O.S. 43-104 [11-43-104] (1978). Title 11 O.S. 43-106 [11-43-106] (1978) is a special statutory exception, which is additional to the requirements set forth in 11 O.S. 43-104 [11-43-104] (1978). However, the general notice requirements will prevail where special circumstances of 11 O.S. 43-106 [11-43-106] (1978) do not comply. It is, therefore, the official opinion of the Attorney General that towns which are for the first time establishing zoning districts must comply with the notice requirements of 11 O.S. 43-104 [11-43-104] (1978). However, towns which are for the first time establishing zoning districts need not comply with the requirements of 11 O.S. 43-106 [11-43-106] (1978), which apply only when there is to be a change in existing zoning restrictions. (STEPHEN F. SHANBOUR) (ksg)