Can the board of a rural Arkansas fire protection district formed in 1982 raise its maximum assessable levy using the 2015 amendments without a new vote of property owners?

Plain-English summary

State Representative Mary Bentley asked five linked questions about a specific Arkansas rural fire protection district formed in 1982 under Act 35 of 1979. In 2015, the General Assembly passed Act 1234, which added a new subsection to Ark. Code Ann. § 14-284-206 letting fire protection districts reassess their "maximum assessed benefits" through the procedures already in the subchapter. The core question: does that new authority reach an older district, and can a board raise the assessment cap without going back to the voters?

AG Leslie Rutledge concluded:

• Q1 (does the 2015 amendment apply to a 1982 district?): Yes. Nothing in Act 1234 restricts its application to districts formed after a particular date. By contrast, when the legislature wants to limit a change to newer districts, it says so expressly (as it did in Act 648 of 1989 and Act 766 of 1995). The 2015 amendment is silent on that, which the AG reads as applying to all rural fire protection districts.
• Q2 (can the board raise the cap without a new vote?): Yes, so long as the statutory reassessment procedures are followed (filing with the county clerk, notice to property owners, opportunity to object and appeal to circuit court). Act 1234 does not require a new election, and no other provision of § 14-284-201 et seq. requires voter approval of assessment amounts (with the narrow exception in § 14-284-212(g)(2)(A) for increases in the flat-fee alternative for districts formed after July 3, 1995).
• Q3 (1982-formed board raising cap with new legislation): Yes. Same reasoning.
• Q4 and Q5 (do post-formation statutory changes apply to a 1982 district?): Generally yes, with the understanding that the legislature can limit some changes to districts formed "hereafter" or "after [specific date]." Two examples: the 1989 board-election rule applies only to districts formed after July 3, 1989; the 1995 flat-fee option applies only to districts formed after July 3, 1995.

The AG also explained why Ark. Const. art. 19, § 27 (which requires majority-property-owner consent for assessment increases in city improvement districts) does NOT apply to rural fire protection districts.

Currency note

This opinion was issued in 2016. 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.

Ark. Code Ann. § 14-284-201 et seq. has been amended after 2015. A fire protection district board considering a reassessment today should consult the current statute and the most recent AG guidance.

Background and statutory framework

Rural fire protection districts in Arkansas

Ark. Code Ann. § 14-284-201 et seq. (codifying Act 35 of 1979, as amended) governs fire protection districts established outside cities and towns. Such a district is formed by petition of at least 10% of qualified electors within the proposed district's boundaries, followed by a special election on the question of establishing and financing the district. The petition must specifically define the area and the maximum assessed benefits that may be levied against property within the district.

What changed in 2015

Before Act 1234 of 2015, the board could not raise the maximum assessed benefits specified in the formation petition. Assessments could be "raised or lowered as fire protection services benefiting the property change" (§ 14-284-214(b)(1)), but increasing the cap itself appeared to require voter approval. The AG had said as much in Op. 2014-032.

Act 1234 of 2015 added subsection (b) to § 14-284-206: "The maximum assessed benefits may be reassessed using the procedures under this subchapter." That single sentence is the lever that lets a board raise the cap without a new election, as long as the procedural requirements in § 14-284-213 are met (filing with the county clerk, notice to property owners, opportunity to object and appeal).

How the legislature signals "future districts only"

When the General Assembly wants a statutory change to apply only to fire protection districts formed after a particular date, it uses explicit language. Two examples in this body of law:

• Act 648 of 1989 (codified at § 14-284-208(b)): "fire protection districts formed after July 3, 1989" must elect board members.
• Act 766 of 1995 (codified at § 14-284-212(g)(1)(A)): the board of a "fire protection district formed after July 3, 1995" may assess a flat fee per parcel or per landowner.

Act 1234 of 2015 contains no such "formed after" language. The AG reads that silence as deliberate: the new reassessment authority applies to all districts, old and new.

Why Article 19, § 27 does not bar this

Article 19, § 27 of the Arkansas Constitution requires majority-property-owner consent for assessment increases in city improvement districts. The Arkansas Supreme Court has interpreted this provision as applying to "improvements purely local to a municipality" (Curlin v. Harding Drain Imp. Imp. Dist., 221 Ark. 412 (1952), and Butler v. Board of Directors of Fourche Drainage Dist., 99 Ark. 100 (1911)). For city improvement districts the petition is the "foundation" of the improvement (Elrod v. Board of Imp. of Paving Dist. No. 45, 171 Ark. 848 (1926)), and any increase in the burden requires fresh consent (Skipper v. St. Imp. Dist. No. 1, 144 Ark. 38 (1920)).

But the Court has expressly held that this constitutional rule does not apply to rural improvement districts. "[T]here is no constitutional requirement that the creation of local improvement districts outside of cities and towns shall be based upon the consent of a majority in value of the property owners" (Butler, quoting Alexander v. Board of Dir. of Crawford Co. Levee Dist., 97 Ark. 322 (1911)). The legislature can even dispense with the petition requirement for rural districts (Skipper, 144 Ark. at 43). So for rural fire protection districts under § 14-284-201 et seq., the petition is not the constitutional foundation, and Article 19, § 27 does not block the legislature from letting boards raise the cap without a new vote.

Common questions

Q: Our fire protection district was formed in the 1980s. Can the board raise our assessment cap without a vote? A: Under this opinion, yes. Act 1234 of 2015 applies to pre-2015 districts and gives the board authority to reassess the maximum, as long as the procedural requirements in § 14-284-213 (filing, notice, opportunity to object, appeal to circuit court) are followed.

Q: What if my district is in a city or town?
A: Different rule. Article 19, § 27 of the Arkansas Constitution requires majority-property-owner consent for assessment increases in city improvement districts. Act 1234's reassessment authority is constrained for in-city districts in a way it is not for rural districts.

Q: Do I have any recourse if I disagree with the board's reassessment? A: Yes. § 14-284-213(b) lets property owners appear and object to the assessment, and appeal any determination to circuit court (formerly chancery court before Amendment 80 to the Arkansas Constitution merged the two).

Q: Does this same logic apply to other statutory changes in § 14-284-201 et seq.? A: Generally yes, unless the General Assembly expressly limits a change to districts formed after a certain date. The 1989 board-election requirement and the 1995 flat-fee option are both expressly "future districts only." Anyone applying a statutory change to a pre-existing district should check whether the change has such a limitation.

Q: What about an increase in the flat-fee alternative for districts formed after 1995? A: § 14-284-212(g)(2)(A) requires an election for any increase in the flat fee. That is a narrow exception to the no-vote-required rule.

Citations and references

Constitutional and statutory authority:

• Ark. Const. art. 19, § 27, majority-property-owner consent for city improvement district assessments
• Ark. Const. amend. 80, abolished chancery courts
• Acts 1979, No. 35 (codified at Ark. Code Ann. § 14-284-201 et seq.)
• Acts 1989, No. 648 (codified at § 14-284-208(b)), election of board members for districts formed after July 3, 1989
• Acts 1995, No. 766 (codified at § 14-284-212(g)(1)(A)), flat-fee option for districts formed after July 3, 1995
• Acts 2015, No. 1234 (codified at § 14-284-206(b)), reassessment authority
• Ark. Code Ann. § 14-284-213, reassessment procedures including filing, notice, objection, and appeal

Cases:

• Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003), plain-meaning statutory construction
• Butler v. Board of Directors of Fourche Drainage Dist., 99 Ark. 100, 137 S.W. 251 (1911), Article 19, § 27 limited to in-city districts
• Skipper v. St. Imp. Dist. No. 1, 144 Ark. 38, 221 S.W. 866 (1920), legislative power to dispense with rural-district petition
• Elrod v. Board of Imp. of Paving Dist. No. 45, 171 Ark. 848, 286 S.W. 965 (1926), petition as foundation for city improvement

Related AG opinion:

• Op. Att'y Gen. 2014-032, pre-2015 view that voter approval was required for assessment increases

Source

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

Original opinion text

Opinion No. 2016-062
August 26, 2016
The Honorable Mary Bentley
State Representative
142 Shady Lane
Perryville, AR 72126-8103
Dear Representative Bentley:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion on the following questions regarding Act 1234 of 2015, which amended a section of the Arkansas Code concerning fire protection districts outside cities and towns:

1. Does the additional language in Act 1234 of 2015 apply to fire protection districts that were established prior to this amendment of April 2015 and specifically in 1982?
2. Does the new language give the board of a fire protection district formed in 1982 under Act 35 of 1979 by petition and election the authority to raise the "maximum assessable levy" or cap without requiring another vote of the people of the district?
3. Can a fire protection district board, created by Act 35 of 1979 in 1982 by a vote of electors in the district which required a petition stating a maximum assessable levy, raise the maximum assessable levy with new legislation?
4. Does the board of a fire protection district formed in 1982 operate under changes and additions made to the code after its establishment?
5. Do changes made to Act 35 of 1979 after the establishment of the district affect its operational procedures?

RESPONSE

The answer to each of your first three questions is "yes." The answer to both Questions 4 and 5 is "generally yes," with the understanding that the legislature might limit the applicability of some changes or additions to only those fire protection districts formed after the enactment of a particular law.

DISCUSSION

Question 1: Does the additional language in Act 1234 of 2015 apply to fire protection districts that were established prior to this amendment of April 2015 and specifically in 1982?

Act 1234 of 2015 amended Ark. Code Ann. § 14-284-206 regarding maximum assessed benefits in fire protection districts established outside cities and towns. Section 14-284-206 applies to districts established upon petition of the qualified electors within the proposed district's boundaries. Prior to the 2015 amendment, section 14-284-206 stated:

Petitions filed pursuant to § 14-284-203 shall specifically define the area proposed to be included in a fire protection district and shall specify the maximum assessed benefits that may be levied against property within the district for the support of the district.

Act 1234 of 2015 amended section 14-284-206 to add the following subsection authorizing a reassessment of the maximum benefits specified in petitions to form a fire protection district:

The maximum assessed benefits may be reassessed using the procedures under this subchapter.

You have asked whether the above-emphasized provision authorizing a reassessment of the maximum benefits applies to districts established prior to the enactment of Act 1234 of 2015. In my opinion, the answer to this question is "yes." Nothing in Act 1234 indicates that its applicability is restricted to fire protection districts created after the Act's effective date.

The first rule of statutory interpretation is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Courts will construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect will be given to every word in the statute if possible. When the statutory language is plain and unambiguous, the meaning of the statute must be determined from the plain meaning of the language used. Our courts will not resort to a strained construction of statutory language for the purpose of restricting or expanding the plain meaning of a statute. Finally, nothing is taken as intended by the legislature that is not clearly expressed.

In this regard, the plain language of Act 1234 of 2015 makes no reference to when a particular fire protection district is, or was, created. When the legislature has intended to apply a new law only to districts created after a certain date, it has stated as much in express terms. For instance, under Act 648 of 1989, members of the board of commissioners of "fire protection districts formed after July 3, 1989" must be elected by the district's qualified electors. And under Act 766 of 1995, the board of a "fire protection district formed after July 3, 1995" may assess a "flat fee" either "per parcel" or "per landowner" as an alternative to assessing benefits.

Act 1234 of 2015 contains no such language. In my opinion, the language of section 14-284-206(b) on its face applies to fire protection districts created both before and after the passage of the 2015 act. This would include a district formed in 1982.

Question 2: Does the new language give the board of a fire protection district formed in 1982 under Act 35 of 1979 by petition and election the authority to raise the "maximum assessable levy" or cap without requiring another vote of the people of the district?

In my opinion, "yes," so long as the statutory reassessment procedures are followed.

Before the enactment of Act 1234 of 2015, the board of commissioners of a fire protection district formed under Ark. Code Ann. § 14-284-201 et seq. lacked authority to increase the "maximum assessed benefits" specified in the petition to form the district. This body of law has always provided that assessments may be "raised or lowered as fire protection services benefiting the property change."

But in the absence of statutory authority to exceed the assessment caps stated in the petition, any increase in the caps likely required voter approval.

The law in this regard was clearly changed by Act 1234 of 2015 when it added subsection (b) to Ark. Code Ann. § 14-284-206. The 2015 act authorized a reassessment of the "maximum assessed benefits" (which I take to be authority to raise the specified assessment caps). To your question regarding another vote of the people, Act 1234 does not include a vote requirement; and with the exception of an increase in the flat fee authorized by legislation in 1995, there is no other provision in Ark. Code Ann. § 14-284-201 et seq. requiring voter approval of the amount of assessments. The requirement of voter approval applies only to the district's formation and the grant of authority to the district to impose assessments upon its members.

In sum, Ark. Code Ann. § 14-284-206(b) is unequivocal in establishing the board's authority to raise assessments without a vote of district members.

It may be helpful to note in this regard that in the case of certain improvement districts, Article 19, section 27 of the Arkansas Constitution requires that voters must approve any increase in a limitation on assessments specified in the petition. Article 19, section 27 provides:

Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements, in towns and cities, under such regulations as may be prescribed by law; to be based upon the consent of a majority in value of the property-holders owning property adjoining the locality to be affected; but such assessments shall be ad valorem and uniform.

This constitutional directive applies to improvement districts situated wholly within cities and towns. As interpreted by the Arkansas Supreme Court, it is a guarantee to property owners in cities and towns that their property will not be assessed for local improvements without the consent of a majority in value of those affected. It has prompted the Arkansas Supreme Court to observe that the petition to form the district is the "foundation" of such local improvements:

The basis for the formation of local improvement districts in cities and towns is the consent of the majority in value of the owners therein, so the petition is the foundation for the improvement. When the petition is signed by the majority in value of the property owners and filed with the city council, that body must consider it with reference to the statutes then existing in order to carry out the intention of the Constitution.

Because the petition is the foundation of the improvement, the Court has further held that the property owners must consent to additional burdens imposed by amendatory statutes:

When the consent of the property owners was first obtained the petition signed by them should have been construed with reference to the existing laws on the subject. If the laws carrying into effect the provision of the Constitution are subsequently changed so as to increase the burden of the taxpayers a new petition must be filed as required by the Constitution. Of course the statute might be amended in regard to the details of carrying out the improvement, but an additional burden cannot be imposed upon the citizens by increasing the tax limit without getting up a new petition and obtaining a majority in value of the owners of real property in the proposed district.

While the Court's reasoning in this regard is clear, it is equally clear that the reasoning is limited to improvement districts inside cities and towns. It does not apply to improvement districts like those formed under Ark. Code Ann. § 14-284- 201 et seq. that cover territory outside cities and towns, i.e., rural improvement districts. The Court has observed that "there is no constitutional requirement that the creation of local improvement districts outside of cities and towns shall be based upon the consent of a majority in value of the property owners." The Court has also noted that the legislature can dispense with a requirement that the property owners sign a petition for the creation of a rural improvement district.

It thus seems clear from the case law regarding Ark. Const. art. 19, § 27 that the petition to form a fire protection district under Ark. Code Ann. § 14-284-201 et seq. is not the foundation for the improvement, such that art. 19, § 27 requires a new vote to raise the assessment caps recited in the petition.

Question 3: Can a fire protection district board, created by Act 35 of 1979 in 1982 by a vote of electors in the district which required a petition stating a maximum assessable levy, raise the maximum assessable levy with new legislation?

Yes. See above discussion.

Question 4: Does the board of a fire protection district formed in 1982 operate under changes and additions made to the code after its establishment? Question 5: Do changes made to Act 35 of 1979 after the establishment of the district affect its operational procedures?

The answer to both of these questions is "generally yes," with the understanding that the General Assembly might limit the applicability of some changes or additions to only those fire protection districts formed after the enactment of a particular law. We know, for example, that the 1989 act requiring the election of board members does not apply to a fire protection district formed in 1982 because that act applies to districts "formed hereafter under Arkansas Code [§] 14-284-201 et seq." Similarly, regarding Question 5, boards of commissioners of "districts formed after July 3, 1995" may assess a flat fee per parcel or per landowner, but as noted above, an increase in the flat fee assessment requires an election.

A definitive answer to these questions therefore requires reference to the particular changes or additions at issue.

Sincerely,

LESLIE RUTLEDGE
Attorney General