Can an Arkansas city pass a blanket ordinance permanently exempting itself from the Shielded Outdoor Lighting Act's requirement that public funds be used only for shielded outdoor light fixtures?

Plain-English summary

Representative Stephen Meeks asked the Attorney General five questions about the Shielded Outdoor Lighting Act, the 2005 law (Act 1963 of 2005, codified at Ark. Code Ann. §§ 8-14-101 to -107) that bars the use of public funds after January 1, 2006 to install any outdoor light fixture unless the fixture is shielded. Shielding means the fixture is covered so light is projected below a horizontal plane running through the lowest point of the fixture where light is emitted. The Act has narrow built-in exemptions, including a cost-prohibitive exemption under § 8-14-104(a)(1)(B) that lets a city or county opt out by ordinance after comparing the cost of the fixtures and the projected energy cost of operating them.

The AG's answers, summarized:

1. A "blanket" ordinance that exempted a city in perpetuity without reflecting any cost analysis was not authorized. The Act required a cost comparison, and an ordinance had to contain at least some measure of information about the cost analysis that supported it. An ordinance that did not would not be effective to exempt the city. The opinion specifically distinguished a Little Rock ordinance that did reflect a cost analysis as not being a blanket ordinance and as generally comporting with the Act.

2. The Act gave no clear guidance on the procedural details about what information was required, whether a "good faith effort" had to be shown, how cities should group fixtures, or how often they had to re-evaluate a cost-exemption ordinance. The AG could not give definitive answers on those, and flagged them as needing legislative or judicial clarification. The AG did note that the Act's reference to "the cost of the fixtures" (plural) implied cities could group fixtures rather than passing one ordinance per fixture.

3. If a city had used public funds since 2006 to install non-compliant fixtures, the later passage of a cost-exemption ordinance could not retroactively cure the noncompliance. But the Act was silent about penalties or whether a city could be compelled to remove or correct illegally installed fixtures.

4. Apart from the six categorical exemptions in subsection (c) and the small-fixture exemption in (b)(1) for fixtures under 150 watts incandescent or 70 watts other, the Act contained no cost-related exemption or other exemption for state agencies. So generally a state agency had no analogous opt-out.

5. The AG's office had no authority to handle citizen grievances and could not opine on what a local prosecutor might do. With the Act silent on penalties, the practical recourse for a citizen was judicial review.

Currency note

This opinion was issued in 2015. 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 did Arkansas's Shielded Outdoor Lighting Act actually require?

After January 1, 2006, no public funds could be used to install an outdoor lighting fixture unless it was shielded. The statutory definition of "outdoor lighting fixture" covered automatically controlled outdoor artificial illumination devices used for illumination or advertisement, including searchlights, spotlights, and floodlights. "Shielded" meant the fixture was covered so the light was projected below the horizontal plane at the fixture's lowest emission point.

What did the cost-prohibitive exemption let a city do?

Under Ark. Code Ann. § 8-14-104(a)(1)(B), a city or county's governing body could exempt itself from the no-unshielded-fixtures rule by ordinance after comparing two things: the cost of the fixtures, and the projected energy cost of operating the fixtures. The statute did not say how to do the comparison, what threshold counted as "prohibitive," or how long the exemption could last.

Why did the AG say a "blanket" ordinance was not enough?

Because the statute required the governing body to make the cost determination "by ordinance." A bare ordinance that just declared an exemption, without reflecting the cost analysis the statute called for, would not be making the required determination at all. So while the AG could not say exactly what information had to be in the ordinance, the ordinance had to show on its face that some cost analysis had been done.

Could a city pass one cost-exemption ordinance covering many fixtures?

The opinion said yes, in effect. The statute spoke of "the cost of the fixtures," in the plural. That phrasing told the AG that a city did not have to pass one ordinance per fixture. The opinion did not spell out exactly how cities should group fixtures or how often to re-evaluate; those were among the procedural details the AG flagged for legislative clarification.

What if a city had already installed non-shielded fixtures with public funds?

The Act was clear that public funds could not be used for unshielded fixtures, so the AG concluded that a later cost-exemption ordinance could not retroactively rescue noncompliant spending. But the Act did not provide any specific penalty, did not say the city could be forced to remove the fixtures, and did not name an enforcement mechanism. That left the question of what to do about already-installed fixtures unresolved.

Did the Act apply to state agencies the same way it applied to cities?

Mostly the same prohibition (no public funds for unshielded fixtures) applied, but state agencies did not get the cost-prohibitive opt-out that cities and counties got. The only state-agency exemptions were the six entities listed in subsection (c) and the small-fixture exemption in (b)(1).

What was a citizen supposed to do if a state agency or city violated the Act?

The AG's office had no role in citizen grievances, and the opinion would not predict what a local prosecutor might do. The Act did not spell out penalties or an enforcement procedure, so the practical answer was that the citizen would likely have to seek judicial review in a court of competent jurisdiction.

Background and statutory framework

The Shielded Outdoor Lighting Act was Act 1963 of 2005. It sat in Title 8 (Environmental Law) of the Arkansas Code at §§ 8-14-101 through -107. Its core operative rule was § 8-14-104(a)(1)(A): "After January 1, 2006, … [n]o public funds shall be used to install an outdoor lighting fixture unless it is shielded."

The statute's exceptions sat in three places. Subsection (a)(1)(B) allowed a city or county to exempt itself via a cost-comparison ordinance. Subsection (b)(1) created a small-fixture carveout for fixtures under 150 watts incandescent or 70 watts non-incandescent. Subsection (c) carved out six state-related entities. Section 8-14-107 said the Act did not apply within a municipality or county that had adopted light-pollution restrictions equal to or more stringent than the Act.

Definitions sat in § 8-14-103. "Outdoor lighting fixture" was an automatically controlled outdoor artificial illumination device used for illumination or advertisement, including searchlights, spotlights, and floodlights. "Shielded" was a fixture covered so the light rays were projected below the horizontal plane running through the lowest point on the fixture where light was emitted.

The opinion repeatedly observed that the Act left out enforcement and procedural specifics that local governments needed: how much cost analysis was enough, what triggers a re-evaluation, what happens to fixtures installed in violation, and who can sue to enforce. The opinion's recurring recommendation was that the General Assembly or the courts would have to clarify these procedural gaps.

Citations

• Ark. Code Ann. § 8-14-101 et seq. (Repl. 2011)
• Ark. Code Ann. § 8-14-103
• Ark. Code Ann. § 8-14-104(a)(1)(A)
• Ark. Code Ann. § 8-14-104(a)(1)(B)
• Ark. Code Ann. § 8-14-104(b)(1)
• Ark. Code Ann. § 8-14-104(c)
• Ark. Code Ann. § 8-14-107
• Acts 2005, No. 1963 (the Shielded Outdoor Lighting Act)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-055
August 5, 2015

The Honorable Stephen Meeks
State Representative
552 Highway 225 E
Greenbrier, Arkansas 72058-9743

Dear Representative Meeks:

This is in response to your request for my opinion on the following questions concerning Act 1963 of 2005, as amended, the Shielded Outdoor Lighting Act (Ark. Code Ann. §§ 8-14-101 to 107 (Repl. 2011)):

(1) Does a city have the authority under Arkansas Code § 8-14-104(a)(1)(B) to pass a "blanket" ordinance exempting the city in perpetuity from the Shielded Outdoor Lighting Act?

(2) If the answer to question 1 is "no":
A. For new outdoor lighting projects:
i. What information must be supplied in an ordinance to justify the cost-prohibitive exemption under (a)(1)(B)?
ii. Must the city show a good faith effort has been made to comply with this statute?
B. For existing outdoor lighting:
i. When the time comes to replace a fixture and a city study justifies passage of a cost-exemption ordinance must the city adopt an ordinance for each individual fixture that needs replacement or may the city group fixtures in one?
ii. If a city may group replacement fixtures for existing outdoor lighting into a single ordinance, in what manner may the city group them?
iii. If cities are allowed to group fixtures in a single ordinance, since fixtures within the group would fail at random intervals going into the future, how often would a city need to re-evaluate the cost-prohibitive exemption ordinance of a group of fixtures, say annually, to prevent the ordinance from creating a perpetual exemption from the law for that group of fixtures?

(3) A. If a city has failed to comply with the law since it took effect in 2006, does a city have the legal authority to enact ordinances to exempt all fixtures that were installed in violation of the statute?
B. If the answer to question 3(A) is "yes," what procedures must a city follow to enact ordinances to cover all fixtures that were installed in violation of the Shielded Outdoor Lighting Act?
C. If the answer to question 3(A) is "no," may a city be compelled to remove or correct illegally installed fixtures?

(4) Regarding state agencies, apart from the six entities exempted under Arkansas Code § 8-14-104, subsection (c) and the exemption under (b)(1) for fixtures with less than 150w incandescent or 70w other, are there any other circumstances under which a non-conforming fixture might be installed using public funds — regardless of cost, safety, or structural modifications that might be required to become compliant?

(5) If a citizen of this state believes a state agency or municipality to be in violation of the Shielded Outdoor Lighting Act, what recourse does the citizen have under the law to compel the agency or municipality into compliance? May a citizen file a grievance with the Attorney General's office or with a local prosecuting attorney? Would a citizen be required to file suit in a court of competent jurisdiction to seek redress of a violation of the Shielded Outdoor Lighting Act?

RESPONSE

With regard to Question 1, I am somewhat uncertain what is meant by a "blanket" ordinance. The Shielded Outdoor Lighting Act ("Act") includes an exemption for any city or county that determines by ordinance that acquiring shielded outdoor lighting fixtures will be cost-prohibitive. The Act does not specify the information to be included in such an ordinance, but it plainly requires that a cost comparison be undertaken; and I believe it reasonably follows that the ordinance must contain some measure of information regarding the cost analysis that formed the basis for its passage. In my opinion, therefore, the answer to Question 1 is "no" as to an ordinance that fails to reflect in some measure this cost determination. In my opinion, an ordinance of that sort would not be effective to exempt a city from the Act.

The Act offers no clear guidance on the several issues raised under Question 2 concerning a city's justification for a cost-exemption ordinance. I thus cannot offer a definitive opinion as to these matters, as this will probably have to be clarified either legislatively or judicially. It is my opinion in response to Question 3 that a city's expenditure of public funds contrary to the Act cannot be rectified by the later passage of a cost-exemption ordinance. However, the penalties for a city's noncompliance with the Act are unclear, suggesting the need for legislative clarification on that score as well. It seems the answer to Question 4 is generally "no," given the apparent absence of a similar cost-related exemption for the state. With regard to Question 5, this office has no authority or role concerning citizen grievances, and I cannot opine as to any possible action by a local prosecutor. As for any other recourse, it seems that seeking judicial review may be the necessary course of action, given that the Act does not clearly address penalties against a noncompliant state agency or city.

DISCUSSION

Question 1: Does a city have the authority under Arkansas Code § 8-14-104(a)(1)(B) to pass a "blanket" ordinance exempting the city in perpetuity from the Shielded Outdoor Lighting Act?

The Shielded Outdoor Lighting Act provides that "[a]fter January 1, 2006, … [n]o public funds shall be used to install an outdoor lighting fixture unless it is shielded." As indicated by Question 4, the Act carves out several exceptions.

The most relevant exception for purposes of this opinion is the one authorizing the passage of cost-exemption ordinances:

Subdivision (a)(1)(A) of this section shall not apply to any municipality or county if the governing body of the municipality or county determines by ordinance … that the cost of acquiring a shielded outdoor lighting fixture will be prohibitive after comparing:
(i) The cost of the fixtures; and
(ii) The projected energy cost of the operation of the fixtures.

The above question concerning a "blanket" ordinance implicates this exception. Although I am uncertain what is meant, precisely, by "blanket," I will note that the statute plainly requires a cost comparison as the basis for a city's or county's determination that acquiring shielded outdoor lighting fixtures will be prohibitive. I cannot opine on what exact information must be included in one of these ordinances or how long the ordinance can or will remain effective. The statute offers little guidance in this respect.

In my opinion, however, the ordinance must contain some measure of information regarding the cost analysis that formed the basis for its passage. I believe this reasonably follows from the requirement that the governing body make the cost determination "by ordinance." It is therefore my opinion that the answer to Question 1 is "no" as to an ordinance that fails to reflect in some measure this cost determination.

[Footnote: I note that you asked me to consider in this regard a City of Little Rock ordinance that authorizes the City to "opt out" of the Shielded Outdoor Lighting Act ("Act"). This ordinance reflects a cost analysis and a resultant determination by the City that the cost of acquiring shielded light fixtures for Little Rock streets would be prohibitive. I do not consider this ordinance to be a "blanket" ordinance of the sort identified above. I believe it generally comports with the Shielded Outdoor Lighting Act.]

Question 2: [Subparts on what information must be supplied in the ordinance, good-faith effort, grouping of fixtures, and frequency of re-evaluation.]

The Act offers little guidance on these questions concerning a city's justification for a cost-exemption ordinance. I therefore cannot definitively opine on what information is required, beyond as I have noted above — that in my opinion the ordinance must contain some unspecified measure of information regarding the cost analysis that formed the basis for the ordinance's passage. Nor can I offer a definitive answer regarding the grouping of fixtures for cost analysis purposes. As for the latter question, I will note that under the Act, the cost analysis is to include "the cost of the [plural] fixtures." In my opinion, this indicates fixtures may be grouped; that is, a city is not required to adopt a cost-exemption ordinance for each individual fixture. I cannot opine further regarding the grouping of fixtures, however, due to the lack of guidance in the Act on these questions. Legislative guidance is indicated.

Question 3: [Whether a city can retroactively exempt fixtures installed in violation, and whether a city can be compelled to remove or correct them.]

The Act is clear in stating that "[n]o public funds shall be used to install an outdoor lighting fixture unless it is shielded." Accordingly, if a city uses public funds to install non-compliant fixtures, I do not believe the later passage of a cost-exemption ordinance can rectify noncompliance. The Act is silent, however, on the question regarding removal or correction of non-compliant fixtures. I thus cannot opine one way or other on that question.

Question 4: [Whether state agencies have any other circumstances permitting installation of non-conforming fixtures with public funds.]

According to my review, the Act contains no cost-related exemption or other exemption relating to circumstances for state agencies. As a general matter, therefore, it seems the answer to this question is "no."

Question 5: [Citizen recourse for suspected violations.]

This office has no authority or role concerning citizen grievances, and I cannot opine as to any possible action by a local prosecutor. As for any other recourse, it seems that seeking judicial review may be the necessary course of action, given that the Act does not clearly address penalties against a noncompliant state agency or city.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh