What services must an Arkansas city actually provide to land it has annexed, and what can landowners do if the city doesn't deliver?

Plain-English summary

Representative Charlotte Vining Douglas asked AG Dustin McDaniel three questions about a city's obligation to provide services to land annexed under A.C.A. § 14-40-501 (surrounded-lands annexation) and § 14-40-503 (post-annexation service provision).

Q1: What does "services" mean?

Not the broad statutory list in A.C.A. § 14-40-2002 (which defines "services" for a different annexation regime). The "services" owed under § 14-40-501 and -503 are simply those described in the annexation ordinance itself. Each city, when adopting an annexing ordinance, identifies the specific services it commits to provide. That ordinance, not a global statutory definition, fixes the obligation.

Q2: How quickly must the city provide them?

A.C.A. § 14-40-503(a) "appears to contemplate" that the city will take reasonable steps to provide the listed services immediately after adopting the annexing ordinance. The statute doesn't impose a hard deadline, but "reasonable" promptness is implied, with the actual timeframe depending on the nature of the service (water and sewer connections take longer than police patrols).

Q3: What can landowners do if the city doesn't deliver?

The statute doesn't itemize remedies, but the AG identifies three traditional avenues:

1. Writ of mandamus to compel the city to perform its statutory duty.
2. Declaratory and injunctive relief directing service provision.
3. A money judgment for an illegal exaction for any taxes paid for services not actually provided.

The AG also considered whether landowners could seek to void the annexation after the 30-day challenge period. He doubted that remedy would be available, but said a court might entertain it if the 30-day limit applies only to suits alleging failure of a statutory precondition to annexation. Failure to provide promised services occurs after annexation and is a condition subsequent, so it may fall outside that limit. The AG found no authority directly resolving the issue and left advice on a particular case to private counsel.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What kind of services typically appear in an annexation ordinance? The AG did not give a list of services commonly included in these ordinances. The city's obligation under the statutes at issue is to provide the services described in its annexation ordinance.

Is there a hard deadline for service delivery after annexation? The statute gives no fixed deadline. The AG said it appears to contemplate that the city immediately take reasonable steps to provide the services listed in its ordinance. The opinion does not assign separate deadlines to particular services.

What is an "illegal exaction" claim?
The AG said citizens aggrieved by a city's failure to provide promised services might, in theory, seek a money judgment for an illegal exaction to recover taxes paid to finance services not provided.

Can a landowner unwind the annexation itself?
The AG doubted that a landowner could void the annexation after the 30-day challenge period, but said a court might entertain a later suit if that limit applies only to suits over failed preconditions to annexation. Failure to provide promised services is a condition subsequent. The opinion found no authority directly deciding whether a later suit to void the annexation is available.

Does this opinion apply to all forms of annexation in Arkansas? No. It specifically addresses surrounded-lands annexation under § 14-40-501 and the service-provision obligation in § 14-40-503. Other annexation regimes (such as voter-petition annexation or boundary-adjustment annexation) have their own service obligations and remedies that may differ.

Background and statutory framework

Arkansas has multiple statutory paths to municipal annexation. The path at issue here, surrounded-lands annexation under A.C.A. § 14-40-501, lets a city annex unincorporated pockets enclosed by its limits.

A.C.A. § 14-40-503 obligates the annexing city to provide the services identified in the ordinance to the newly annexed area. A.C.A. § 14-40-2002 defines "services" for a separate, broader annexation context, listing specific service types in detail. The AG concluded these definitions are not transitive: § 14-40-2002 does not control the meaning of "services" in § 14-40-501 and -503.

The three remedies (mandamus, declaratory/injunctive relief, illegal exaction) are standard Arkansas equitable and statutory remedies for governmental nonperformance, available even when the underlying statute is silent about enforcement.

Citations

• A.C.A. § 14-40-501 (surrounded-lands annexation)
• A.C.A. § 14-40-503 (service provision obligation)
• A.C.A. § 14-40-503(a) (timing of service provision)
• A.C.A. § 14-40-2002 (separate "services" definition for other annexation regime)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-119

February 13, 2014

The Honorable Charlotte Vining Douglas
State Representative

5315 Ridge Road

Alma, Arkansas 72921-8254

Dear Representative Douglas:

I am writing in response to your request for my opinion concerning the scope of the requirement that a city provide services to surrounded land that the city has annexed. Specifically, you have posed the following questions:

1. Does the term “services,” as used in A.C.A. §§ 14-40-501 and
   14-40-503, mean the same as “services” as defined in A.C.A. § 14-40-2002? If not, what does the term “services” mean, particularly with respect to the services a city is required to render to an annexed area under § 14-40-503?

2. Is the city required to provide services to an annexed area under
   § 14-40-503 within a certain amount of time? If so, what is the time frame in which the services must be rendered? If not, is the city required to provide services within a reasonable amount of time as determined by the type of services being provided?

3. What remedies may landowners of annexed land pursue if
   services are not provided as required under § 14-40-503?

RESPONSE

In my opinion, the answer to your first question is “no.” The “services” to be provided pursuant to A.C.A. §§ 14-40-501 and -503 are simply those described in the annexation ordinance. With respect to your second question, A.C.A. § 14-40-

323 CENTER STREET, SUITE 200 ¢ LITTLE Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 ¢ Fax (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-119

Page 2

503(a) appears to contemplate that upon the adoption of an annexing ordinance, the city will immediately take reasonable steps to provide the services recited in the ordinance. With respect to your third question, although the statute does not specify remedies, an aggrieved landowner might presumably seek a writ of mandamus, declaratory and injunctive relief directing that the services be provided, and/or a money judgment for an illegal exaction in the form of any taxes paid for services not provided. Assuming the 30-day period to challenge an annexation has run, I question that a landowner could sue seeking to void the annexation itself. A court might entertain such a suit, however, if it concluded that the limitations period applies only to suits seeking to void an annexation for failure to meet any of the statutorily mandated preconditions. Ultimately, however, only private counsel acquainted with all the pertinent facts could render advice regarding what remedies are available if an annexing city fails to provide the services described in the annexing ordinance.

Question 1: Does the term “services,” as used in A.C.A, §§ 14-40-501 and 14- 40-503, mean the same as “services” as defined in A.C.A. § 14-40-2002? If not, what does the term “services” mean, particularly with respect to the services a city is required to render to an annexed area under § 14-40-503?

In my opinion, the answer to your first question is “no.” The definition of “services” set forth in A.C.A. § 14-40-2002 expressly applies only to the section in which it is set forth. Moreover, even within the context of that section, the statute does not obligate the municipality in all instances to provide all of the “services” set forth in the definition. The term “services” as used in subchapter 5 of title 14, chapter 40 refers to whatever services are described in the annexation order. These need not invariably track, in my estimation, the “services” defined in A.C.A. § 14-40-2002. With respect to the second part of your question, although A.C.A, § 14-40-503 clearly anticipates that the city will render certain “services” to an annexed area, the statute itself does not set forth any list that an annexing city is “required to render” as a condition of annexation.

Subject to various conditions not at issue in your question, § 14-40-501 of the Arkansas Code authorizes a municipality by ordinance to annex an unincorporated area that is completely surrounded by the municipality’s corporate limits or thus bounded on three sides, with the fourth abutting a state line, a military base, a state park or a national forest.' This statute further provides as follows:

' A.C.A, § 14-40-501(a)(1) (Supp. 2013).

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-119

Page 3

The ordinance will provide a legal description of the land to be annexed and describe generally the services to be extended to the area to be annexed’

Section 14-40-503, which you likewise reference in your question, further provides in part:

If a majority of the total number of members of the governing board vote for the proposed annexation ordinance, then a prima facie case for annexation shall be established, and the city shall proceed to render services to the annexed area.°

The term “services” is defined neither in these statutes nor in any provision generally applicable within article 14, chapter 40 of the Code.

You have asked whether the specific definition of “services” set forth in A.C.A. § 14-40-2002 applies prescriptively within the context of the statutes set forth above. In my opinion, it does not. The statute defines the term “services” as follows:

For purposes of this section, “services” means electricity, water, sewer, fire protection, police protection, drainage and storm water management, or any other offering by the municipality that materially affects a landowner’s ability to develop, use, or expand the uses of the landowner’s property.’

In my opinion, nothing supports the suggestion that an ordinance issued pursuant to A.C.A. § 14-40-501(a)(2) must commit to provide all of the “services” recited

• Id. at subsection (a)(2) (emphasis added).
  3 A.C.A. § 14-40-503(a)(2) (Supp. 2013).

“ A.C.A. § 14-40-2002(e) (Supp. 2013) (emphasis added). The section containing this definition authorizes any group of landowners to petition a home municipality for additional “services necessary to create improvements, provide employment or additional employment, subdivide, or otherwise maximize the use and value of the property.” /d at subsection (b)(1)(A) (emphasis added). Under the statute, the home municipality’s failure to provide the requested services will empower the landowner(s) to seek annexation to a contiguous municipality willing and able to accommodate the request. The statute does nof require an annexing municipality to provide all of the services recited in the statutory definition; rather, it expressly mandates that the municipality provide within a specified time only those “services” included within the definition specifically requested as “additional” by the landowners within the affected area. Jd at subsection (b).

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-119

Page 4

in the definition set forth at A.C.A. § 14-40-2002. As reflected in the first highlighted phrase excerpted above, on its face, the statutory definition applies only “[f]or purposes of this section,” not for purposes of imposing a services obligation upon a city under another subchapter of the Code.”

The question, then, is what the term “services,” which is not formally defined, means as used in A.C.A. §§ 14-40-501 and -503. The answer to this question inheres in the express language in A.C.A. § 14-40-501 directing that the annexation ordinance “describe generally the services to be extended to the area to be annexed.” Implicit in this language is an acknowledgment that the range of services an annexing city elects to provide may vary.° The term “services” as used in these two statutes, then, means whatever services the governing body has described in the annexation ordinance.’ Subchapter 5 clearly anticipates that the annexed area be provided with some variety of services — a conclusion consistent with the statutory provision that the order recite the “services to be extended” to the annexed area — but it hardly follows that those services must be all services that happen to be defined as such within another context elsewhere in the Code.

Question 2: Is the city required to provide services to an annexed area under § 14-40-503 within a certain amount of time? If so, what is the time frame in which the services must be rendered? If not, is the city required to provide services within a reasonable amount of time as determined by the type of services being provided?

As noted above, subsection (a)(2) of the statute referenced in your question provides that “[i]f a majority of the total number of members of the governing board vote for the proposed annexation ordinance, then . . . the city shall proceed

° Indeed, even within the context of the section within which this definition of “services” appears, nothing suggests that the annexing district must provide all services listed. Under § 14-40-2002, the only services that must be provided are those requested by the applicants for annexation. See note 4, supra.

° See, eg., City of Centerton v. City of Bentonville, 375 Ark. 439, 445, 291 S.W.3d 594 (2009) (acknowledging, without any indication of impropriety, that the City of Centerton had committed only to the provision of water services in annexing property pursuant to A.C.A. § 14-40-501 ef seg.). The court in Centerton stressed that compliance with the applicable statute controlled in determining the propriety of an annexation. /d. at 443,

” Compare Op. Att’y Gen. No. 94-207 (opining that, in accordance with what is now A.C.A. § 14-40- 303(a)(2) (Supp. 2013), which requires that an annexation ordinance referred to the voters contain “a schedule of services,” “the City of Haskell, if the annexation is adopted, must provide . . . the services it has agreed to provide in the ordinance”); accord Op. Att’y Gen. No. 94-369,

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-119

Page 5

to render services to the annexed area.” Although no case law directly addresses the issue of timing in providing such services, the statute on its face appears to contemplate that the annexing jurisdiction will take reasonable steps to provide services immediately upon the governing body’s approval of the annexation.® In light of this fact, in my opinion, the answer to the final part of this question is

Question 3: What remedies may landowners of annexed land pursue if services are not provided as required under § 14-40-503?

I must note initially that I am statutorily barred from the private practice of law and hence cannot advise aggrieved landowners regarding their legal options in seeking relief.? Not being a finder of fact, I am further neither authorized nor situated to weigh the particular circumstances giving rise to your request. Subject to these provisos, I will set forth certain general provisions of law that I believe might bear on your question.

You have asked what remedies might lie if the city fails to provide services specified in an annexation ordinance. Before addressing this question, I should point out that the statute referenced in your request contains a 30-day limitations period to file suit challenging the annexation itself.’? A challenge filed within this statutory time-period normally involves a claim that none of the statutorily itemized available preconditions for annexation has been met.'' This statutory time-limit to challenge an annexation based upon an alleged failure to meet a condition precedent does not appear to apply under the circumstances giving rise

® This conclusion appears consistent with the proposition that the annexing city will presumably immediately commence assessing the annexed properties for the services to be provided. See Op. Att’y Gen. No. 2009-190 (generally discussing this issue).

7 A.C.A. § 25-16-701 (Repl. 2002).
'° Subsection 14-40-503(b) provides:

The decision of the municipal council shall be final unless suit is brought in circuit court of the appropriate county within thirty (30) days after the passage for review the actions of the governing body.

'' These preconditions are set forth at A.C.A. § 14-40-302(a)(1) (Supp. 2013), which is incorporated by reference in A.C.A. § 14-40-501(b)(1) as applicable to a subchapter 5 annexation. Compare City of Jacksonville v. City of Sherwood, 375 Ark. 107, 289 S.W.3d 90 (2008) (reviewing compliance with these preconditions in the course of affirming an annexation initiated by petition of adjoining landowners). I will not here dwell on these preconditions, which are not at issue in your request.

The Honorable Charlotte Vining Douglas
State Representative

Opinion No, 2013-119

Page 6

to your question, which focuses on the availability of relief when an annexing municipality fails to provide services promised as conditions subsequent to annexation.

The situation you describe invites comparison with one addressed by the Arkansas Supreme Court in City of Rockport v. City of Malvern,” which involved a challenge in circuit court to an annexation approved pursuant to A.C.A. § 14-40- 2002. At issue was whether the annexing jurisdiction had provided the required services within the 12-month statutory deadline for compliance following annexation.'? The court noted that the statute “states the procedure for what happens if the statutory requirements are not satisfied”'* and accordingly considered whether “substantial steps” had been taken to provide the services promised.’> Having determined that such steps had indeed been taken, the court affirmed the lower court’s decision to reject the challenge to the annexation.'®

In City of Rockport, the procedure followed to obtain relief was an action in circuit court to void the annexation — the result mandated in the statute itself.'’ Sections 14-40-501 and -503, which are directly at issue in your request, do not similarly spell out the legal consequences of a city’s failure to perform as required under the statute. Nothing would preclude aggrieved landowners, however, from seeking in

29010 Ark. 449, 374 S.W.3d 660.

'5 2010 Ark, 449, *2, The pertinent statutory provision addressed by the court currently provides as follows:

However, if the requested services are not available within twelve (12) months after the property is accepted by the annexing jurisdiction or substantial steps are not taken to make the services available within this time period, then the detachment and annexation shall be void and all property returned to its original jurisdiction.

A.C,A. § 14-40-2002(b)(3)(B)(ili). The statute considered by the court in City of Rockport was materially indistinguishable.

' 2010 Ark, 449, 6-7. The court’s characterization is a bit misleading in that the statute states the consequence of failing to provide timely services — namely, voiding the annexation — rather than “the procedure for what happens” in the wake of such a failure. The court clearly considered a suit of the sort before it, however, as an appropriate procedural avenue for relief.

° Td.

'© 2010 Ark, 449, *7-12,

"Id. att.

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-119

Page 7

circuit court to hold the city to any commitment it might have made in its annexation ordinance. Presumably, any such action would take the form of a prayer for mandamus" or for a declaratory judgment and an injunction seeking provision of the promised services.!? Given the statutory 30-day restriction on suit challenging annexation,”’ I question that the aggrieved parties could alternatively seek to void the annexation, although, as noted above, this statute of limitations may apply only to actions seeking to avoid annexation based upon the failure of any condition precedent to apply. I have found no authority directly addressing these possibilities.

Finally, I should note that citizens aggrieved by a city’s failure to provide promised services might in theory bring an action alleging an illegal exaction in order to recover any taxes paid to finance services not provided. I have previously discussed in detail the issue of taxation in the wake of an annexation ordinance issued pursuant to A.C.A. § 14-40-503.7! I need not here reproduce my analysis of this issue, instead simply setting forth the following tentative conclusion:

I am inclined to conclude that the provision of the statute obliging the city immediately to provide services to the annexed area upon a vote approving the annexation indeed triggers not only the authority, but an obligation, to charge the residents of the annexed area for the costs of municipal services rendered. ... [T]he statute imposes upon the annexing municipality an obligation immediately to provide services to the annexed area, which I believe means the municipality

'® As the Arkansas Supreme Court noted in Russell v. Webb, 2011 Ark, 307, *4:

A writ of mandamus is appropriate if three factors are established: (1) the duty to be compelled is ministerial and not discretionary; (2) the petitioner has shown a clear and certain right to the relief sought; and (3) the absence of any other adequate remedy. Parker v, Crow, 2010 Ark. 371, = S.W3d__.

1 note, in this regard, that this remedy would resemble the equitable remedy of specific performance, which is regularly applied in contractual disputes relating, as in this instance, to real property. As recently noted in Higginbotham vy. Graham, 2013 Ark. App. 397,3,_ s S.W.3d__: Specific performance is an equitable remedy that compels the performance of an agreement or contract on the precise terms agreed upon. Union Pacific R.R. Co. y. Barber, 356 Ark. 268, 307, 149 S.W.3d 325, 351 (2004).
*° 14-40-503(b).

"1 Op. Att’y Gen. No. 2009-190.

The Honorable Charlotte Vining Douglas
State Representative

Opinion No. 2013-119

Page 8

is conversely obliged to assess the residents of the annexed area for the rendering of those services.

Although I have found no authority directly on point, an aggrieved taxpayer could presumably file suit to recover payments made for services not rendered.

Having offered these general observations regarding remedies, I must again stress that I am foreclosed from the private practice of law. Choosing among possible available remedies is a task properly performed in consultation with private counsel acquainted with all of the facts.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

7, Lo >

JSTIN McDANIEL
Attorney General

DM/JHD:cyh

Enclosure

STATE OF ARKANSAS

THe ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2009-190

March 19, 2010

Ken Casady, Prosecuting Attorney
22d Judicial District

102 South Main Street

Benton, Arkansas 72015

Dear Mr. Casady:
I am writing in response to your request for an opinion on the following questions:

l. When the governing body of a municipality approves an annexation ordinance under A.C.A. § 14-40-5003, should the county assessor begin applying city millage to the real property in the newly annexed area immediately upon being notified by the municipality, or should the assessor wait until the thirty (30) day time period for challenging the annexation in circuit court has elapsed?

2. When the governing body of a municipality approves an
   annexation ordinance under A.C.A. 14-40-503, should the county clerk change the voting precincts of the newly annexed area immediately upon being notified by the municipality, or should the clerk wait until the thirty (30) day time period for challenging the annexation in circuit court has elapsed?

3, If suit is brought in circuit court within the thirty (30) day challenge period mentioned in A.C.A. 14-40-503, should the county assessor and the county clerk wait until final adjudication of the matter is complete and all appeals are exhausted before taking any of the above-cited actions?

323 CENTER STREET, SUITE 200 * LiTTLE Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 * Fax (501) 682-8084 INTERNET WEBSITE * http://www.ag,state.ar.us/

Ken Casady, Prosecuting Attorney
224 Judicial District

Opinion No. 2009-190

Page 2

4, When the governing body of a municipality approves an annexation ordinance under A.C.A. 14-40-503 and suit is filed challenging that decision in circuit court within the 30- day period, docs the county court hold in abeyance any decision on petitions filed and pending before the county court for voluntary annexation under A.C.A. 14-40-601, where a decision regarding such petitions would affect the distance of city limits adjoining the unincorporated arca’s perimeter under A.C.A. 14-40-501(a)(1)(B)?

RESPONSE

With respect to your first question, although the issue invites legislative clarification, it is my opinion that the county assessor in all likelihood should begin applying city millage to the real property in the newly annexed area immediately upon being notified by the municipality that an annexation ordinance under A.C.A. § 14-40-503 has been approved. With respect to your second question, in accordance with the conclusion just stated, I believe the county clerk should change the voting precincts upon being notified of the city council’s approval of the annexation, rather than waiting until the thirty (30) day time period for challenging the annexation in circuit court has elapsed. In my opinion, in light of the foregoing, I believe the answer to your third question is “no.” With respect to your fourth question, given my opinion that an annexation pursuant to A.C.A. § 14-40-503 is effective as of the date of the city council’s approval, I believe it would be improper for the county court to act on pending petitions for voluntary annexation under A.C.A. § 14-40-601 until and unless the annexation under A.C.A. § 14-40-503 is declared void by a court.

Question 1: When the governing body of a municipality approves an annexation ordinance under A.C.A, 14-40-503, should the county assessor begin applying city millage to the real property in the newly annexed area immediately upon being notified by the municipality, or should the assessor wait until the thirty (30) day time period for challenging the annexation in circuit court has elapsed?

In my opinion, although the answer to this question is not entirely clear, I believe a court might well conclude that the county assessor should apply the city millage upon the date of annexation rather than awaiting the lapse of the 30-day period during which the annexation may be challenged.

Ken Casady, Prosecuting Attorney
22d Judicial District

Opinion No. 2009-190

Page 3

Subsection 14-40-501(a)(L)(A) of the Arkansas Code (Supp. 2009) authorizes a municipality to annex an unincorporated area that is completely surrounded by the municipality’s corporate limits or surrounded on three sides with the state line bounding ihe fourth. This authority is qualified by the requirement that the land to be annexed fall within one or more of various conditions set forth in A.C.A. § 14- 40-302 (Supp. 2009). A.C.A. § 14-40-501(b)(1). Subchapter 5 of title 14, chapter 40 of the Code (Repl, 1998 & Supp. 2009) provides for notice and a public hearing following the proposal of an ordinance calling for annexation. A.C.A. § 14-40-502 (Repl. 1998), The subchapter contains no provision calling for a vote of the landowners approving the annexation; rather, A.C.A. § 14-40-503 (Repl. 1998) provides only that the governing body of the municipality, following a public hearing, will vote to approve or disapprove the annexation, subject to the condition, set forth in subsection (b) of the statute, that anyone wishing to challenge the council's provisional decision may do so by filing an action within 30 days of the enactment of the ordinance.

The timetable for effecting the annexation -- and, by possible extension, for applying a city millage on the affected real property -- is set forth in A.C.A. §§ 14- 40-502 and -503. Subsection 14-40-502(a) requires that a public hearing be held within 60 days of the proposal that the annexation ordinance be passed. Subsection (b) of the statute requires that notice of the hearing be published within 15 days of the hearing. Subsection 14-40-503(a)(1) provides that the council may bring the proposed annexation order up for a vote at the next scheduled council meeting following the public hearing. Subsection (a)(2) provides that a positive vote will establish a “prima facie case for annexation” and directs the city to “proceed to render services to the annexed area,” Subsection (b) provides that the council’s vote will be “final” unless a challenger files suit within 30 days.

The issue underlying your question is whether the directive that the city “proceed to render services to the annexed area” upon an approving vote of the council authorizes the city immediately to impose a millage upon the residents of the annexed area to defray the costs of those services or whether the assessor must wait to impose this millage until the 30-day period to challenge the annexation has passed. Unfortunately, I have found no statutory or case law that directly addresses this question. Although the statutory directive that the city proceed to provide services to the annexed area clearly implies that the annexation -- and, presumably, the authority to charge for services rendered as a result of the annexation -- is triggered purely by the council’s vote approving the annexation,

Ken Casady, Prosecuting Attorney
22d Judicial District

Opinion No. 2009-190

Page 4

the issue is somewhat muddled by the statutory provisions declaring that the vote establishes only a prima facie case for annexation, which may be challenged within a period of 30 days from the vote.

As noted in 62 C.J.S. § 64, Municipal Corporations (1999);

In the absence of a statute to the contrary, territory annexed to a municipal corporation becomes a part thereof immediately on annexation, and comes under the power, control, and jurisdiction of the municipality, insofar as powers of a political and governmental nature delegated to the municipality by law are concerned, and the municipality assumes the burdens attached to the territory annexed. All parts of the city, annexed as well as original territory, are entitled to the same advantages, and they must also bear like burdens.

(Emphasis added; footnotes omitted.) Section 66 of this treatise, captioned “Time of Taking Effect,” likewise declares:

Annexation of territory to a municipal corporation ordinarily occurs on enactment of the statute providing therefor or at such other time as may be prescribed by the legislature, and the added territory becomes subject to municipal benefits and burdens immediately on its annexation. ...

(Emphasis added; footnote omitted.) The section further remarks:

New territory annexed to a municipal corporation becomes entitled to the benefits of the facilities of the municipality, and subject to its share of municipal burdens, immediately on the taking effect of the annexation.

(Footnote omitted.)
This section further notes, however, that “under some statutes,” the annexation, with its attendant benefits and burdens relating to the annexed territory, is effective

“on the expiration of a complaint against the annexation.”

In applying these general principles, the question appears to be whether the provision in A.C.A. § 14-40-503(a)(2) directing that a vote of the city council

Ken Casady, Prosecuting Attorney
22d Judicial District

Opinion No. 2009-190

Page 5

approving annexation require the city to “proceed to render services to the annexed area” imposes upon the residents of the annexed area a concomitant obligation to pay for those services. Intuitively, the answer to this question would appear to be “yes,” given that the recipients of a mandatory provision of services following an authorized annexation should logically be expected to pay for those services. However, I have found no authority that directly addresses this issue. The problem with respect to this question arises from the fact that subsection (b) of this statute might be read as directing that the council vote approving annexation be merely provisional, as distinct from “final” -- the quoted term from the statute possibly suggesting that the effect of the council’s approval will be triggered only after the 30-day period for filing a challenge has elapsed.

In addressing this question, I am inclined to conclude that the provision of the statute obliging the city immediately to provide scrvices to the annexed area upon a vote approving the annexation indeed triggers not only the authority, but an obligation, to charge the residents of the annexed arca for the costs of municipal services rendered. In this regard, I believe a reviewing court mi ght well be inclined to read subsection (b) of the statute not as a restriction on the effective date of the annexation ordinance, but rather as a restriction, in the interests of “finality,” on the availability of a judicial challenge by the residents of the annexed area. Compare Jackson v. City of Little Rock, 274 Ark. 51, 621 S.W.2d 852 (1981) (upholding the city’s collection of franchise taxes, based upon services rendered, during the pendency of an appeal! which resulted in the annexation being declared void); see also Op. Att’y Gen, No. 1994-340 (discussing the implications of this principle). As the court noted in Jackson:

The chancellor held that the appellee City of Jittle Rock was under the responsibility to furnish services to the annexed area. Therefore, the City properly collected franchise taxes from appellants in the area during the pendency of the appeal to the Supreme Court from a circuit court order approving the annexation.

Id. At 51-52. In the present case, the statute imposes upon the annexing municipality an obligation immediately to provide services to the annexed area, which I believe means the municipality is conversely obliged to assess the residents of the annexed area for the rendering of those services. In my opinion, then, a reviewing court would in all likelihood conclude that the county assessor should apply city millage to real property in a newly annexed area immediately upon being notified by the municipality. Having offered this opinion, J must note

Ken Casady, Prosecuting Attorney
22d Judicial District

Opinion No. 2009-190

Page 6

that legislative or judicial clarification on this issue would be welcome within the specific context of the annexation of surrounded land.

Question 2; When the governing body of a municipality approves an annexation ordinance under A.C.A. 14-40-503, should the county clerk change the voting precincts of the newly annexed area immediately upon being notified by the municipality, or should the clerk wait until the thirty (30) day time period for challenging the annexation in circuit court has elapsed?

For the reasons set forth in my response to your previous question, I believe the county clerk should change the voting precincts of the annexed arca upon being informed of the city council’s approval of the annexation, which would appear to become effective as of the date of the council’s vote, rather than upon the lapse of the 30-day period to appeal that vote.

Question 3: If suit is brought in circuit court within the thirty (30) day challenge period mentioned in A.C.A, 14-40-503, should the county assessor and the county clerk wait until final adjudication of the matter is complete and all appeals are exhausted before taking any of the above-cited actions?

In my opinion, the answer to this question is, in all likelihood, “no.” Nothing in the statute or any other authority I have found suggests that the consequences of a city’s immediate annexation of property, accompanied by an immediate provision of services to the annexed area, should be stayed or superseded pending the disposition of an appeal challenging the annexation. Until a circuit court declares otherwise on appeal, I believe an annexation effected by an appropriate vote of a city council should be treated as a fait accompli, meaning that the city is obliged to provide municipal services and the residents of the annexed area are obliged to pay their proportional share of the expenses to provide those services.

Question 4: When the governing body of a municipality approves an annexation ordinance under A,C.A. 14-40-503 and suit is filed challenging that decision in circuit court within the 30-day period, does the county court hold in abeyance any decision on petitions filed and pending before the county court for voluntary annexation under A,C.A. 14-40-601, where a decision regarding such petitions would affect the distance of city limits adjoining the unincorporated area's perimeter under A,C.A. 14-40-501(a)(1)(B)?

Ken Casady, Prosecuting Attorney
22d Judicial District

Opinion No. 2009-190

Page 7

Although the Code does not directly address the scenario set forth in your question, I believe the answer to this question is, in all likelihood, “yes.”

The provisions of A.C.A. § 14-40-503 are set forth and discussed in detail above. Subsection 14-40-501(a)(1)(B) of the Code (supp. 2009), provides as follows:

If the incorporated limits of two (2) or more municipalities have completely surrounded an unincorporated area, the governing body of the municipality with the greater distance of city limits adjoining the unincorporated arca’s perimeter may propose an ordinance calling for the annexation of the land surrounded by the municipalities, unless it is agreed by the adjoining municipalities that another of the adjoining municipalities should propose an ordinance calling for the annexation.

Section 4-40-601 of the Code (Repl. 1998) provides:

(a) Whenever a majority of the real estate owners of any part of a county contiguous to and adjoining any city or incorporated town shall desire to be annexed to the city or town, they may apply, by petition in writing, to the county court of the county in which the city or town is situated and shall name the persons authorized to act on behalf of the petitioners.

(b) The “majority of real estate owners” referred to in this section shall mean a majority of the total number of real estate owners in the area affected, if the majority of the total number of owners shall own more than one-half (1/2) of the acreage affected.

In reviewing these two statutes, I am struck by the fact that they both address the annexation of unincorporated areas, As reflected in my response to your previous questions, I believe the Code appears to direct that an annexation pursuant to A.C.A, § 14-40-503 becomes effective upon the date of the city council vote approving the annexation. Although the Code would benefit from judicial clarification, I do not believe a pending appeal filed pursuant to A.C.A. § 14-40- 503 affects the validity of the annexation; only a ruling by the court voiding the annexation would have that effect.

Ken Casady, Prosecuting Attorney
22d Judicial District

Opinion No. 2009-190

Page 8

Subchapter 6 of title 14, chapter 40, sets forth a procedure whereby the owners of land adjoining a municipality may petition the county court to conduct a hearing and, if the allegations of the petition are supported by the proof, to annex the area described in the petition into the adjoining municipality. A.C.A. §§ 14-40-601 through -603 (Repl. 1998). Section 14-40-604 (Repl. 1998) directs that any action relating to any such annexation be deferred for a period of 30 days to enable any interested person to challenge the annexation in circuit court.

In my view, the mere fact that an appeal is pending challenging an annexation effected pursuant to A.C.A. § 14-40-503 does not stay the cffect of the annexation, which will be valid unless and until a court voids the annexation. Specifically in response to your question, then, I do not believe that the pendency of the appeal under A.C.A. § 14-40-503 affects a petition for voluntary annexation under A.C.A.
§ 14-40-601. What matters, in my estimation, is the timing of events relating to the two avenues of effecting the annexation. If the city has, in fact, already annexed the land pursuant to A.C.A. § 14-40-503, this event would appear to moot any pending petition by residents within the annexed property to have the county court annex the property into a municipality. Presumably, under the proposed scenario, during the hearing called for in A.C.A. § 14-40-602, the county court would be apprised of the prior annexation under 14-40-503 and reject the petition. The question of whether granting the pending petition would affect the extent of the respective boundaries of two municipalities adjoining the annexed territory would consequently appear to be likewise moot,

Underlying this analysis, of course, is an assumption, which I believe is justified in light of the text of A.C.A. § 14-40-503, see response to question 1, that neither the 30-day window for filing an appeal nor the possible pendency of an appeal under (hat statute in any sense stays the effect of the annexation. If I am wrong in this assumption, it might be appropriate, although it is by no mcans straightforwardly mandated by statute or case law, for a county court to withhold action on a petition to annex until the circuit court has ruled on the appeal under A.C.A. § 14-40-503. This conclusion applies a fortiori if the county’s proceeding with an annexation would change the relative boundaries of municipalities to land subject to annexation, thus possibly changing which municipality has priority regarding the possible annexation of property under A.C.A. § 14-40-501(a)(1)(B).

As the foregoing should suggest, all of your questions would be readily answered with more certitude than I fecl comfortable advancing if the legislature clarified what is the effect of the 30-day window to appeal set forth in A.C.A. § 14-40-503.

Ken Casady, Prosecuting Attorney
22d Judicial District

Opinion No. 2009-190

Page 9

Although I do not believe the possibility or the pendency of an appeal stays the effect of an annexation, the legislature would do well to clarify this issue one way or the other,

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JHD:cyh