When an Arkansas city annexes land served by a subscription volunteer fire department, does the volunteer department automatically lose that territory?

Plain-English summary

State Representatives Bruce Cozart and John T. Vines asked Attorney General Dustin McDaniel four questions about what happens to a subscription-style volunteer fire department when a city annexes land that was part of the department's service area. The AG concluded that Arkansas law had no clear answer to the central question: no statute automatically stripped a subscription department of its membership in the annexed territory, and no statute required the department to refund any membership fee collected before annexation. At the same time, the annexing city had its own statutory duty under A.C.A. § 14-53-101 to provide fire protection to its inhabitants, and it could not simply defer that duty to the volunteer department. A cooperation agreement between the city and the volunteer department was permitted and, in the AG's view, was probably the cleanest way to resolve the overlap.

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.

What the AG concluded, question by question

Q1: Does the volunteer fire department automatically lose households and property in the annexed territory?
No state statute made annexation, by itself, terminate a subscription department's membership base in the annexed area. The AG noted that fire improvement district assessments under A.C.A. § 14-284-225 are stripped from annexed property, but that statute did not extend to subscription departments organized as nonprofit corporations. He was clear that the department's continued role in the annexed area would "immediately be in question," but speculated that resolution would depend on the facts and on any contract between the department and its subscribers.

Q2: Does the volunteer fire department owe a refund of membership fees?
No statute imposed that obligation. The AG left open the possibility that contract law between the department and its subscribers, or a quantum meruit theory, could produce different outcomes depending on the circumstances.

Q3: Is a cooperation agreement between the city and the volunteer department prohibited?
No. The AG specifically suggested that a cooperation agreement was likely the preferred course of action.

Q4: Can the city simply defer fire protection to the volunteer department?
No. Under A.C.A. § 14-53-101, the city council "shall establish fire departments and provide them with proper engines and such other equipment as shall be necessary to extinguish fires." That statutory duty meant the city could not abdicate to a private subscription department without arranging the service through contract.

Common questions

Q: After annexation, do residents of the annexed area have to pay both the city's fire protection costs and the volunteer department's dues?
The AG flagged this exact risk and observed there was no statutory answer. He noted that property owners would "understandably question being double-charged" if the volunteer department kept billing while the city also taxed the area to fund fire service.

Q: Could the county quorum court redraw the volunteer department's service area to take the annexed land out of it?
The AG raised this possibility under A.C.A. § 14-20-108, the statute that lets the quorum court designate a volunteer department's service area. He noted the issue gets more complicated if dues had been levied by election and were listed on real property tax statements.

Q: What is the difference between a "subscription" volunteer fire department and a fire improvement district?
Subscription departments are typically organized as nonprofit corporations that collect dues or "subscriptions" from property owners. Fire improvement districts, governed by A.C.A. § 14-284-101 et seq., have statutory boundaries and levy assessments. The AG noted that A.C.A. § 14-284-225 expressly prohibits continued assessments on improvement-district property once it is inside a municipality, but that prohibition does not, by its terms, apply to subscription departments.

Background and statutory framework

The opinion turned on a tension between three things: (1) the city's mandatory duty to provide fire protection under A.C.A. § 14-53-101; (2) the absence of any statute terminating a subscription department's membership upon annexation; and (3) the recognition in A.C.A. § 14-20-108 that volunteer fire departments serve "unincorporated areas" of a county under boundaries set by the quorum court. Subscription departments organized as nonprofit corporations sit outside the more structured fire improvement district regime in A.C.A. § 14-284-101 et seq., which is why the AG could not give a tidy answer about what happens to membership and dues post-annexation.

The opinion repeatedly noted that legislative clarification or a judicial ruling would be needed to resolve the underlying gap. The AG referenced prior Op. Att'y Gen. Nos. 2008-073, 2004-224, 2004-042, 96-372, 2002-032, 94-340, and 2007-171 as background.

Citations

Statutes

• A.C.A. § 14-20-108 (volunteer fire department service areas designated by quorum court)
• A.C.A. § 14-28-101 (definition of "volunteer public safety organization" for county workers' compensation)
• A.C.A. § 14-53-101 (city council duty to establish fire departments)
• A.C.A. § 14-284-225 (prohibiting continued fire improvement district assessments on annexed property)
• A.C.A. § 14-284-101 et seq. (fire protection improvement districts)

Prior AG opinions referenced

• Op. Att'y Gen. 2008-073, 2004-224, 2004-042, 96-372, 2002-032, 94-340, 2007-171

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-009

April 29, 2014

The Honorable Bruce Cozart The Honorable John T. Vines
State Representative State Representative

420 Rock Creek Road 123 Market Street

Hot Springs, Arkansas 71913-9261 Hot Springs, Arkansas 71901

Dear Representatives Cozart and Vines:

You have requested my opinion on the following questions concerning the impact of annexation on fire protection, where a city has annexed a portion of land that was part of a "volunteer fire department" territory:

1. Once annexation occurs, does the volunteer fire department automatically lose the households and property within the annexed territory as part of their fire district?

2. If the answer to question 1 is in the affirmative, does the volunteer fire department owe a return membership fee to the properties within the annexed area?

3. Is there any prohibition against a cooperation agreement between the respective departments regarding fire protection, equipment usage, etc.?

4. Is there any prohibition against the annexing city deferring fire protection to the volunteer fire department if that fire protection is deemed adequate?

RESPONSE

Although you have not stated as much, I assume, based on your reference to a "membership fee," that these questions pertain to a fire department that was formed as a nonprofit organization under the general state law authorizing the creation of nonprofit corporations. This type of fire department is sometimes called a "subscription" fire department because it receives fees or subscriptions from property owners within its service territory. In response to your first two questions, no provision of state law specifies that a fire department of this sort automatically loses its membership or owes a return membership fee as a consequence of its service territory being annexed by a city. For the reasons discussed below, I can speculate that the department will at some point no longer have a membership base in the annexed portion of its service area. But the absence of any controlling state law makes it impossible to draw any certain conclusions regarding the applicable time frame or procedures. The issue may also turn to some extent on facts, of which I am unaware, surrounding the particular fire department. The answer to your third question is "no," there is no prohibition to this effect. Indeed, a cooperation agreement may well be the preferred course of action, assuming the city decides an agreement with the volunteer department offers the best means of providing fire protection to the annexed area. It is my opinion that the answer to your fourth question is "yes," the city is prohibited from simply deferring fire protection to the volunteer fire department because the city has an obligation under state law to provide fire protection for its inhabitants.

Question 1 - Once annexation occurs, does the volunteer fire department automatically lose the households and property within the annexed territory as part of their fire district?

According to my review, there is no state law specifying that a subscription volunteer fire department automatically loses its membership in the portion of its service territory that is annexed by a city. This is not to suggest, however, that the department will either maintain that membership or continue to serve that territory. Indeed, I believe the department's status or role with respect to the annexed territory will immediately be in question post-annexation. I can only speculate, however, regarding the possible scenarios and outcome, given the absence of any controlling state law on the matter. The analysis may also vary, depending upon the particular surrounding facts.

The initial basis for questioning the volunteer fire department's role or status respecting the annexed area stems from A.C.A. § 14-20-108, which refers to volunteer fire departments serving "unincorporated areas." I interpret this to refer to service areas established pursuant to A.C.A. § 14-20-108(b)(1), which authorizes the county quorum court to "designate the geographical area that a volunteer fire department serves." Although I cannot be certain, I suspect, based on your reference to the volunteer fire department's "fire district," that your questions pertain to a department that in fact has a service area that was designated by the quorum court. It seems logical and appropriate in that case to question the continued effect of the quorum court's service area designation post-annexation, at least as to that portion of land that is no longer in an unincorporated part of the county.

This observation is buttressed by the annexing city's clear duty under state law to provide fire protection to the annexed area. I cannot conclude, absent a more clear statement of legislative intent, that this duty automatically negates a volunteer department's membership base in the annexed area. But it is difficult to reconcile the city's duty with any claim of right on the part of the department to continue to serve that area.

Having offered these observations, I must note that state law currently provides no guidance regarding this apparently inevitable transition in fire protection following annexation. I can speculate that the matter will come to light as the city begins to tax the annexed area in order to fulfill its statutory obligation to provide fire protection, among other services. Property owners in the annexed area may understandably question being double-charged if the volunteer fire department is continuing to receive membership fees. However, the absence of any statutory guidance makes it impossible to draw any certain conclusions as to the probable resolution of any dispute revolving around fees.

These tensions could potentially be resolved by some sort of agreement between the city and the volunteer fire department regarding the provision of fire protection to the annexed area. As noted above, the city is obligated to provide fire protection services for its inhabitants; and one way to fulfill this obligation that may well avoid the above issues would be to contract with the volunteer department. The city might pay the department to continue servicing the area, with the department presumably agreeing to waive or adjust its membership fees so as to avoid the double-charge issue.

Absent an agreement of some sort, the department's status or role with respect to the annexed territory may be a matter for judicial resolution.

Question 2 - If the answer to question 1 is in the affirmative, does the volunteer fire department owe a return membership fee to the properties within the annexed area?

I have found no requirement in state law to that effect, but see discussion above regarding some of the issues that will need to be addressed following the annexation.

Question 3 - Is there any prohibition against a cooperation agreement between the respective departments regarding fire protection, equipment usage, etc.?

No. Indeed, a cooperation agreement may well be the preferred course of action, assuming the city decides this offers the best means of providing fire protection to the annexed area. See discussion above.

Question 4 - Is there any prohibition against the annexing city deferring fire protection to the volunteer fire department if that fire protection is deemed adequate?

In my opinion, the annexing city is prohibited from simply deferring fire protection to the volunteer fire department because, as stated above, the city has an obligation under state law to provide fire protection for its inhabitants.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM:EAW/cyh