Can an Arkansas city order a homeowner to connect to the city sewer when their property is more than 300 feet from the line?
Plain-English summary
Arkansas cities have broad police-power authority to require connection to municipal sewer systems for public health reasons, and the Arkansas Supreme Court has upheld this authority for over a century. But the General Assembly drew a hard line: A.C.A. § 14-235-302 only authorizes a city to require sewer connection for property "near or adjacent to any sewer." A.C.A. § 14-235-304 then specifies a 300-foot outer limit on that authority.
State Senator David Wallace asked AG Tim Griffin whether a city could enact an ordinance requiring new residential homes within the city limits to connect to the sewer if those homes were more than 300 feet from an existing sewer line. The AG said no. Such an ordinance would directly conflict with state law and would be invalid.
The interesting historical wrinkle: in 2005, the General Assembly amended A.C.A. § 14-235-302 to substitute "municipality" for "board of health" in the sentence about who can order a connection. The 2005 amendment did not similarly amend A.C.A. § 14-235-304, which still references "board of health" in the 300-foot limit. The opinion reads the 2005 amendment as a routine modernization that did not displace the 300-foot limit, because (1) the Arkansas Supreme Court had construed "near or adjacent" to mean 300 feet since 1890 (Martin v. Hilb, 53 Ark. 300), and (2) the General Assembly is presumed to know existing judicial constructions and not to disturb them silently.
What this means for you
If you are a city council member or city attorney drafting a sewer ordinance
Do not draft an ordinance that compels connection beyond 300 feet from an existing sewer line. The 300-foot rule sits at A.C.A. § 14-235-304, and the Arkansas Supreme Court has read that distance into the "near or adjacent" language of § 14-235-302 since 1890. The 2005 amendment that put "municipality" in place of "board of health" in § 14-235-302 did not erase the 300-foot cap.
You can require connection within 300 feet, you can require new construction within that range to connect, and you can require the homeowner to bear the cost of connection (City of Mountain Home v. Ray, 223 Ark. 553). What you cannot do is sweep in homes farther out.
If you are a homebuilder or rural property owner
If your house is more than 300 feet from the nearest sewer line, the city cannot force you to connect, even if your property is inside city limits. You can use a septic system, well water, or other on-site solutions consistent with health-code requirements. If a city ordinance tries to compel a longer connection, this AG opinion gives you a strong basis to push back, and Bennett v. City of Hope, 204 Ark. 147 (1942), strikes down ordinances that exceed the 300-foot limit.
The opinion does not change anything about voluntary connection. You can still connect at any distance if you and the city reach an agreement. The bar is on compelled connection.
If you advise municipalities on infrastructure planning
The 300-foot rule constrains what cities can mandate, but it does not constrain what cities can build. Under A.C.A. § 14-235-203(c)(1), a municipality can build and operate a sewer system that extends within or beyond the city limits. So a city that wants compliance from properties farther out has two routes: (1) extend the sewer line so the property comes within 300 feet, then compel connection, or (2) negotiate a voluntary connection agreement.
Common questions
Q: Can a city pass an ordinance for any reason it likes?
A: Cities have broad police-power authority under A.C.A. § 14-55-102, but only "not inconsistent with the laws of this state." When a city ordinance conflicts with state law (or is "less restrictive than state statutes"), it is invalid. The 300-foot rule sits in state statute, so a city ordinance compelling connection beyond it conflicts.
Q: Why does "near or adjacent" mean 300 feet?
A: The Arkansas Supreme Court construed the phrase that way in Martin v. Hilb, 53 Ark. 300, 14 S.W. 94 (1890), and confirmed it in Bennett v. City of Hope, 204 Ark. 147 (1942). Since judicial constructions stick unless the legislature changes them in unmistakable language (Martin v. Pierce, 370 Ark. 53), the 1890 reading remains the law.
Q: What happened in 2005?
A: Act 279 of 2005 amended A.C.A. § 14-235-302 to replace "board of health" with "municipality." It did not amend the parallel "board of health" language in A.C.A. § 14-235-304 (the 300-foot rule). The opinion reads the asymmetry as not creating a loophole. The General Assembly is presumed to know that "near or adjacent" had been construed as 300 feet for over a century, and silence on the construction does not change it.
Q: Can the city charge me for the connection?
A: Yes, when the connection is otherwise lawfully required. City of Mountain Home v. Ray, 223 Ark. 553, 267 S.W.2d 503 (1954), and Freeman v. Jones, 189 Ark. 815, 75 S.W.2d 226 (1934), confirm that a city compelling a connection within its authority can also impose the connection's costs and expenses on the property owner.
Q: What if my property is exactly 300 feet from the line?
A: The opinion treats 300 feet as the outer boundary of "near or adjacent." The Arkansas Supreme Court's case law is the authoritative source on the rule's edge cases. As a practical matter, anyone disputing a connection requirement based on a measurement at or near 300 feet should consult a surveyor and counsel.
Q: Does this rule apply to commercial or industrial property?
A: The opinion responds to a question framed around residential connection ordinances. The underlying state statutes (A.C.A. §§ 14-235-302 and -304) do not distinguish residential from commercial. The 300-foot limit on compelled connection appears to apply across the board, but a property owner facing a non-residential connection question should review § 14-235-302's full text.
Background and statutory framework
Arkansas cities are creatures of the legislature; they only have the powers the General Assembly delegates. The relevant police-power grant is at A.C.A. § 14-55-102, which authorizes ordinances "not inconsistent with the laws of this state" to provide for safety, health, prosperity, morals, order, comfort, and convenience. Cities also have municipal-affairs authority under A.C.A. § 14-43-602(a), so long as the legislation is not "contrary to the general laws of the state" (and Ark. Const. art. 12, § 4 reinforces the same restraint).
For sewer connection specifically, three provisions interlock:
- A.C.A. § 14-235-203(c)(1) authorizes "[e]very municipality… to own, acquire, construct, equip, operate, and maintain" a sewer system "within or without the corporate limits of the city."
- A.C.A. § 14-235-302 authorizes the municipality (since the 2005 amendment) to require property owners "near or adjacent to any sewer" to connect to the sewer.
- A.C.A. § 14-235-304 still references "board of health" but caps the connection authority at 300 feet, and the Arkansas Supreme Court has read this distance into the "near or adjacent" language of § 14-235-302 since Martin v. Hilb in 1890.
The opinion's contribution is not to write a new rule, but to confirm that the 2005 amendment did not silently displace the 300-foot cap. The interpretive moves are: (1) the General Assembly is presumed to know judicial constructions of statutes (Martin v. Pierce); (2) when statutes use words a court has construed, those words are taken in the construed sense (Scalia & Garner, Reading Law); (3) statutes in pari materia must be construed together (Carroll v. Hobbs); and (4) ordinances that are "contrary to" or "less restrictive than" state law are preempted (Tompos v. City of Fayetteville).
Citations and references
Statutes:
- A.C.A. § 14-235-302, sewer connection authority
- A.C.A. § 14-235-304, 300-foot maximum
- A.C.A. § 14-235-203(c)(1), sewer system authority within or without city limits
- A.C.A. § 14-55-102, police-power ordinance authority
- A.C.A. § 14-43-602, municipal-affairs legislative power
- Act 84 of 1881, § 18, historical origin of the 300-foot rule
- Act 279 of 2005, § 1: 2005 substitution of "municipality" for "board of health"
- Ark. Const. art. 12, § 4
Cases:
- Martin v. Hilb, 53 Ark. 300, 14 S.W. 94 (1890), "near or adjacent" construed as within 300 feet
- Bennett v. City of Hope, 204 Ark. 147, 161 S.W.2d 186 (1942), invalidating ordinance that exceeded 300-foot limit
- Phillips v. Town of Oak Grove, 333 Ark. 183, 968 S.W.2d 600 (1998), police-power limits
- City of Mountain Home v. Ray, 223 Ark. 553, 267 S.W.2d 503 (1954), connection costs may be imposed
- Freeman v. Jones, 189 Ark. 815, 75 S.W.2d 226 (1934), same
- Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5 (1933), city sewer connection upheld as valid police power
- Branch v. Gerlach, 94 Ark. 378, 127 S.W. 451 (1910), sewer compelled connection upheld
- Carroll v. Hobbs, 2014 Ark. 395, 442 S.W.3d 834, in pari materia construction
- Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007), legislature presumed to know judicial constructions
- Tompos v. City of Fayetteville, 280 Ark. 435, 658 S.W.2d 404 (1983), state law preempts conflicting city ordinance
Source
Original opinion text
Opinion No. 2024-061
September 5, 2024
The Honorable David Wallace
State Senator
Post Office Box 11
Leachville, Arkansas 72438
Dear Senator Wallace:
You ask whether a city can "pass an ordinance requiring newly constructed residential homes to connect to a city's sewer system if they are within the city limits but more than 300 feet away from a current sewer line."
RESPONSE
A city cannot lawfully enact an ordinance that requires residential homes to connect to a city's sewer system more than 300 feet from the property because this would directly conflict with state law.
DISCUSSION
- Police power. Cities, towns, and other municipalities "are creatures of the legislature" and only have powers as delegated to them by the General Assembly. This expressly delegated authority includes the broad "police power": the power to "make and publish bylaws and ordinances, not inconsistent with the laws of this state, which, as to them, shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof."
The Arkansas Supreme Court has upheld, as a valid exercise of the police power, city ordinances that compel property owners within city limits to connect to a sewer system, and to pay the associated costs and expenses, when the health, comfort, and convenience "of persons living together in close relation and in large numbers require" it.
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Municipal affairs. Under A.C.A. § 14-43-602(a), cities are also "authorized to perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs," if the legislation is not "contrary to the general laws of the state."
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State law. In addition to the foregoing broad grants of authority to cities, A.C.A. § 14-235-302 specifically permits cities, not only to build and maintain sewers, but also to require property owners "near or adjacent to any sewer" to connect to the sewer, "whenever in [the city's] opinion the public health will be promoted by it."
In 1890, the Arkansas Supreme Court first construed the "near or adjacent" limitation in earlier versions of A.C.A. § 14-235-302. At that time, the law authorized "the Board of Health of any city … to order any one or more property owners near or adjacent to any sewer, to" connect to the sewer. This language is now codified at A.C.A. § 14-235-302. The same section of the act then limited the authority of boards of health, providing that boards of health could not "order or compel the building of a sewer by one property owner … for a greater distance from his property through or into any street or alley than three hundred feet, to a place where a connection can be made with a sewer." This language is now codified at A.C.A. § 14-235-304.
Reading this together, the Arkansas Supreme Court explained that the 300-feet limitation "define[s]" the phrase "near or adjacent."
For over 100 years, the law did not change. In 2005, however, the General Assembly replaced the term "board of health" in A.C.A. § 14-235-302 with "municipality," but it did not change the term "board of health" in A.C.A. § 14-235-304. Thus, this raises a question: if "any municipality" can order a property owner who is "near or adjacent to any sewer" to connect to that sewer under A.C.A. § 14-235-302, but A.C.A. § 14-235-304's 300-feet limit only mentions "municipal board[s] of health," may a municipality require a property owner to connect to a sewer, even if the owner is farther than 300 feet away?
It is my opinion that a municipality may not require a property owner to connect to a sewer if the property is more than 300 feet away from the sewer. That's because the General Assembly "is presumed to know" the Supreme Court's decisions, so words that the Court has already construed are "to be understood according to that construction." Here, since 1890, the Arkansas Supreme Court has construed the "near or adjacent" language in § 14-235-304 as incorporating a 300-foot outer limit. None of the General Assembly's amendments to the statutory scheme has changed that language. Therefore, a court will presume that the General Assembly did not alter the century-old interpretation of "near or adjacent" in that statute.
- Conflict with state law. Even when an ordinance is within a city's power, the next question is whether it would conflict with any state law. A conflict occurs when an ordinance is contrary to or irreconcilable with state statutes, or when it less restrictive than state statutes.
If a city were to pass an ordinance that requires homeowners "to connect to a city's sewer system" that is "more than 300 feet away from a current sewer line," it would directly conflict with § 14-235-302(a), which states that this can only happen if "near or adjacent to any sewer", which the Arkansas Supreme Court has interpreted as "within 300 feet." Thus, this ordinance would be both contrary to and less restrictive than state statute.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General