After an Arkansas county court approves a landowner's petition to annex land into a city, does the city have a deadline to accept or reject the annexation?

Plain-English summary

Representative Andrea Lea asked AG Dustin McDaniel about Arkansas's landowner-petitioned annexation process. Subchapter 6 of Title 14, Chapter 40 (A.C.A. §§ 14-40-601 to -606) lets owners of land adjoining a city petition the county court to grant annexation. The county court holds a hearing and, if the allegations are supported by proof, orders the annexation. After the county court order, there is a 30-day window for any interested person to challenge the annexation in circuit court. If the circuit-court window passes (or the challenge fails), the annexation order is confirmed only "if the city or incorporated town council shall, by ordinance or resolution, accept the territory."

Representative Lea's question: Once the county court has approved the petition, is there a statutory deadline for the city to either accept or reject?

The AG read the question as having two possible meanings. Either it assumes the city must accept and asks about timing, or it asks whether the city has any obligation to accept at all. The AG answered both interpretations:

The city is not required to accept. As one Arkansas legal commentator put it, the acceptance requirement is "mandatory, apparently on the theory that a city may not be compelled to accept territory it does not want." Cases like Van Marion v. Hawkins and Gowers v. City of Van Buren assume that city acceptance is a prerequisite to the effectiveness of an annexation order.

There is no statutory deadline. A.C.A. § 14-40-605(a) makes the annexation effective when the city accepts but says nothing about when the city must decide. The AG noted Posey v. Paxton, Sheriff, 201 Ark. 825 (1941), where a city council passed an acceptance ordinance "some fifteen or sixteen years" after the county court order, and the court did not question the city's authority to act at that late date (the annexation in Posey failed for other reasons).

The AG acknowledged the policy oddity. The commentator he cited (Morton Gitelman, Changing Boundaries of Municipal Corporations in Arkansas, 20 Ark. L. Rev. 135 (1966)) argued that the structure "requires a useless act in holding hearings and going through judicial proceedings when the city may cavalierly reject the preferred territory." But that is what the statutes provide. Without legislative clarification, the AG could not read a deadline into the scheme.

So the practical answer: after a county court grants an annexation petition, the city can take its time, or never act at all. Landowners cannot force the city's hand.

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

Does an Arkansas city have to accept land that's been court-approved for annexation?
At the time of this opinion, no. The city has discretion to accept or reject the territory. The annexation only becomes effective if the city affirmatively accepts by ordinance or resolution.

Is there a deadline for the city to decide on a court-approved annexation?
At the time of this opinion, no statutory deadline existed. A city could take years to decide, or never decide at all. The 2014 opinion noted Posey v. Paxton (1941), where a city accepted 15-16 years after the county court order.

Why does the landowner have to go through county court first if the city can just refuse?
That's the policy oddity the AG flagged. The Arkansas statutes structure landowner annexation as a county-court process culminating in city acceptance. Critics have called the city-acceptance step a possible "useless act" if the city was always free to reject. But the structure is what the legislature enacted.

Who can challenge an annexation order in circuit court?
A.C.A. § 14-40-604(a)(1) allows any interested person to file a challenge in circuit court within 30 days of the county court order. The circuit court can annul the order if it makes the required findings, or affirm it (subsection (a)(2)).

What's the process after city acceptance?
A.C.A. § 14-40-605(b)(1) requires the county clerk to certify the county court order and plat of the annexed territory to the Secretary of State and the Arkansas Public Service Commission Tax Division "if the council accepts the territory."

Are there other ways to annex into an Arkansas city?
Yes. Arkansas law provides several annexation mechanisms (city-initiated annexation, voter-approved annexation, etc.). This opinion only addresses landowner-petitioned annexation under A.C.A. §§ 14-40-601 to -606.

Background and statutory framework

The statutes the opinion analyzes:

• A.C.A. § 14-40-601 to -603: petition, hearing, and county court order.
• A.C.A. § 14-40-604(a)(1): 30-day window for interested-person challenge in circuit court.
• A.C.A. § 14-40-604(a)(2): circuit court can annul or affirm.
• A.C.A. § 14-40-605(a): annexation effective on city council acceptance "by ordinance or resolution."
• A.C.A. § 14-40-605(b)(1): county clerk certification to Secretary of State and PSC Tax Division if accepted.

The cases the AG drew from:

• Posey v. Paxton, 201 Ark. 825 (1941): city council passed acceptance ordinance 15-16 years after county court order; court did not question authority to act at that late date.
• Van Marion v. Hawkins, 224 Ark. 199 (1954): held no proper annexation occurred where "the City acquired no jurisdiction to pass the resolution of acceptance" due to lack of compliance with statutory annexation procedures.
• Gowers v. City of Van Buren, 210 Ark. 776 (1946): substantial evidence of acceptance found even where the city could not produce a specific ordinance or resolution.

The commentator the opinion quotes is Morton Gitelman, Changing Boundaries of Municipal Corporations in Arkansas, 20 Ark. L. Rev. 135 (1966). His policy critique (that the structure requires hearings that may be useless if the city rejects) is acknowledged in the opinion but not resolved, because the AG concluded only the legislature can change the structure.

Citations

• A.C.A. § 14-40-601 to -606 (Repl. 2013) (landowner-petitioned annexation framework)
• A.C.A. § 14-40-604(a)(1) (30-day circuit court challenge window)
• A.C.A. § 14-40-604(a)(2) (circuit court annulment or affirmation)
• A.C.A. § 14-40-605(a) (annexation effective on city acceptance)
• A.C.A. § 14-40-605(b)(1) (county clerk certification post-acceptance)
• Posey v. Paxton, Sheriff, 201 Ark. 825, 147 S.W.2d 39 (1941) (15-16 year delay in city acceptance)
• Van Marion v. Hawkins, Collector, 224 Ark. 199, 272 S.W.2d 199 (1954) (no jurisdiction without statutory compliance)
• Gowers v. City of Van Buren, 210 Ark. 776, 197 S.W.2d 741 (1946) (substantial-evidence acceptance)
• Morton Gitelman, Changing Boundaries of Municipal Corporations in Arkansas, 20 Ark. L. Rev. 135 (1966)

Source

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

Original opinion text

Opinion No. 2014-025
May 20, 2014

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL

The Honorable Andrea Lea
State Representative
Post Office Box 1342
Russellville, Arkansas 72811

Dear Representative Lea:

You have requested my opinion on the following question concerning a petition
for annexation under A.C.A. § 14-40-601 to -606:

In a landowner petition for annexation under Ark. Code Ann. § 14-
40-601 et seq., after the county court approves the landowner request
for annexation into a city, is there a timeframe for which the city
must act to pass an ordinance or resolution to accept the petitioning
landowner and territory?

RESPONSE

This question is a little unclear. It may assume, on the one hand, that the city must
act to accept the territory, the only question being whether such action must occur
within a certain timeframe. Or it may be asking whether the city is under any
obligation at all to accept the territory after the county court has accepted the
adjoining landowners' request for annexation. While I am therefore somewhat
uncertain regarding the exact focus of your question, I believe it is a sufficient
response to state that in my opinion the city in all likelihood is under no obligation
to accept the territory, notwithstanding the county court order granting the
adjoining landowners' petition.

DISCUSSION

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 proof, to grant the petition
and order annexation. The statutes further direct 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. The circuit court may, upon making
certain findings, annul the county court order and restrain any further action under
it. Or it may affirm the county court order, in which case the proceedings to
prevent annexation will be dismissed.

Of particular significance for purposes of your question, the annexation is
effective upon acceptance by the city or town council:

If no notice shall be given within thirty (30) days from the making of
the order of annexation by the county court, the proceeding before
the court shall in all things be confirmed, if the city or incorporated
town council shall, by ordinance or resolution, accept the territory.

As noted by one commentator, "[t]his acceptance is mandatory, apparently on the
theory that a city may not be compelled to accept territory it does not want...."

It thus appears that the city is under no obligation to accept territory embraced in a
petition for annexation that has been granted by the county court. This is perhaps
logical, under the premise that the city should be able to determine what its
boundaries will be. It might also seem logical for the city to make that
determination and convey its decision within some reasonable period of time
following the entry of the county court order. However, there is no requirement to
that effect on the face of the statutes. And without clarification by the legislature,
I cannot read such a requirement into the statutory scheme. I am instead
constrained in the issuance of legal opinions, as a court would be, to interpreting
the plain language used by the legislative branch, and giving effect to that
language absent an ambiguity.

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

DUSTIN McDANIEL
Attorney General

DM:EAW/cyh