Our county planning board does not meet the new rural-residency rule in Act 519 of 2025. Do we have to fire current members right away, or can we phase the change in?

Plain-English summary

Act 519 of 2025 amended A.C.A. § 14-17-203(a) to require that a majority of the voting members of every county planning board live in an unincorporated area of the county. The act took effect August 5, 2025 and applies to boards that existed before the change as well as boards created afterward. It does not say how a county should bring an existing board into compliance, and that gap is what produced this opinion.

Senator Penzo's quorum court got conflicting advice: one lawyer said disband the board and reappoint, another said let current members serve out their terms and rebalance over time. The AG walks through four compliance paths and analyzes the legal exposure of each.

The four options:

1. Addition. Increase the board's size up to the 12-member statutory cap by appointing rural-residing members. The county judge appoints, the quorum court confirms. This is the cleanest path because no current member is removed.

2. Attrition. Let current nonrural members finish their four-year terms; replace each one with a rural-residing appointee as the seat opens up. The board is technically out of compliance until the math works out, but no one's tenure is disturbed.

3. Dissolution. The county judge and quorum court can abolish the planning board entirely, then create a new one. The Arkansas Supreme Court (Ward and Pine Bluff) treats abolition of the board as different from removal of individual members; due-process protections do not apply. Big caveat: if the dissolution is pretext for getting rid of specific members, courts will treat it as removal and the for-cause requirement kicks back in.

4. Subtraction. Remove individual members before their terms end. This requires "cause" under § 14-17-203(b), which Arkansas courts define as "any act of commission or omission that would stamp the person in question as unfit to occupy the position," that "directly affects the rights and interests of the public." A statutory amendment changing the residency rule is not cause attributable to the individual member, so this path is the most legally vulnerable.

Due process matters. Members of a county planning board serve fixed four-year terms and can only be removed for cause. The Arkansas Supreme Court treats that as creating a property interest in the position, which means notice and a hearing before removal. Skipping that process exposes the county to a procedural-due-process suit.

De facto officer doctrine. Even if the board is technically out of compliance, the existing members are de facto officers and their actions remain legally valid until removed through a quo warranto action.

Act 519 is not retroactive. It does not undo prior actions; it just sets a forward-looking residency rule.

What this means for you

If you are a county judge

Start with the easiest path: addition, then attrition. Recommend appointment of rural-residing members to fill any vacancies first, and propose adding seats up to the 12-member cap if needed to hit the rural majority. If the math still does not work and you want to dissolve and recreate the board, document a clear, board-wide rationale that is not aimed at specific members; otherwise a court can recharacterize the dissolution as removal and trigger the for-cause and due-process requirements. Avoid removing individual nonrural members for cause solely because Act 519 took effect; cause must attach to the individual.

If you are a quorum court member

Addition and attrition both require quorum-court action: confirming new appointments and approving any size increase up to 12 members. Dissolution requires an ordinance under § 14-17-203(f). For-cause removal requires the quorum court to confirm the county judge's recommendation, after a hearing and findings. Do not vote to confirm a removal-for-cause recommendation that rests only on residency without something the member actually did wrong.

If you currently sit on a county planning board and live in a city

Your seat is not automatically forfeited under Act 519. You hold a fixed-term position with a "for cause" removal standard, which gives you a property interest in your seat. You are entitled to notice and a hearing before being removed. If the county tries to dissolve the board to remove you specifically, that pretext theory is recognized in Arkansas case law and triggers the same protections. Consult county-specific counsel about whether to challenge any removal.

If you are a developer, landowner, or applicant before a planning board

A board that is out of compliance with Act 519 is not legally paralyzed. Under the de facto officer doctrine, decisions made by the board remain valid until a court (in a quo warranto action) declares an officer ineligible. Permits, zoning decisions, and subdivision approvals issued by an out-of-compliance board are not automatically void.

If you are a county attorney

Walk the county through the four-option ladder. Document the rationale for whichever path you choose. If dissolution is on the table, build the record around board structure or function, not individual members. If for-cause removal is contemplated, identify cause that pre-existed and is independent of Act 519's residency change. Build in notice and hearing on the record. The de facto officer rule gives you breathing room while the transition happens.

Common questions

When did Act 519 take effect?
August 5, 2025, the default effective date for non-emergency 2025 acts of the Arkansas General Assembly. The act has no emergency clause or other specified date.

Does Act 519 apply to planning boards that existed before August 5, 2025?
Yes. The AG cites prior opinions confirming that legislative silence about retroactivity for pre-existing entities means the act applies prospectively to all boards going forward. The act's residency rule kicks in for the board's composition; it does not invalidate past actions.

Can the county judge just remove the city-residing members and replace them?
Not without showing cause. Arkansas courts define cause as misconduct or unfitness specific to the person, not changed eligibility criteria imposed later by the legislature. Statutory amendments are not legal cause for removal.

Can the county dissolve the board to start fresh?
Yes, in principle. The Arkansas Supreme Court has held that the power to create includes the power to abolish, and abolition of a board is not "removal" of the members. But if the dissolution is pretextual (designed to clear out specific members), courts will treat it as removal and the for-cause requirement applies.

What due process do existing members get?
Reasonable notice and a fair hearing before any removal. The Arkansas Supreme Court in Rockefeller v. Hogue and Williams v. Dent has held that fixed-term, for-cause-removable officers have a property interest that triggers Fourteenth Amendment and Arkansas due-process protections.

If the board is out of compliance, are its decisions valid?
Yes. The de facto officer doctrine treats the actions of someone holding office under color of title as legally valid until the officer is removed through a quo warranto proceeding. Appointed planning board members are de facto officers of the county.

Who can challenge an ineligible member's seat?
A quo warranto action filed in court is the recognized way to test a de facto officer's eligibility. Collateral attacks through other lawsuits are generally not available.

Background and statutory framework

A.C.A. § 14-17-203 governs the creation, composition, and removal of county planning boards. Subsection (a)(1) makes the creation of a board permissive: "the county judge of any county may create a county planning board," subject to quorum-court approval. Subsection (a)(2) sets the size at five to twelve members. Act 519 added a new subsection (a)(4) requiring a majority of voting members to reside in an unincorporated area. Subsection (b) requires removal "for cause" by the county judge with quorum-court confirmation. Subsection (f) lets the quorum court assume the board's powers by ordinance.

Cause for removal. Williams v. Dent, 207 Ark. 440 (1944) defined "cause" as "any act of commission or omission that would stamp the person in question as unfit to occupy the position." Carswell v. Hammock, 127 Ark. 110 (1917) added that the cause must be "legal cause" that "specially relates to and affects the administration of the office" and "directly affect[s] the rights and interests of the public." A statutory residency rule does not fit either definition with respect to a sitting member.

Property interest in office. Patton v. Vaughan, 39 Ark. 211 (1882) and Williams v. Dent treat fixed-term, for-cause-removable officers as having a property interest in their position. Rockefeller v. Hogue, 244 Ark. 1029 (held the entity removing such an officer "acts in a quasi-judicial capacity" and the procedure must "assure a fair trial and due process of law."

Abolition vs. removal. Pine Bluff (2008) and Ward (1983) hold that abolishing a board terminates the office without "removing" the members; due process is not triggered. But pretextual abolition will be treated as removal.

De facto officer doctrine. Bell v. State, 334 Ark. 285 (1998) and a long line of AG opinions establish that an officer acting under color of title has legally valid official acts even if their eligibility is ultimately found wanting. The remedy is a direct quo warranto challenge, not collateral attack.

Retroactivity. Arkansas has a strong presumption against retroactive application of statutes. JurisDictionUSA v. Loislaw.com, 357 Ark. 403 (2004) requires retroactivity to be "stated or implied so clearly and unequivocally as to eliminate any doubt." Act 519 contains no retroactivity language, so it operates prospectively only: the residency rule applies to the board's composition going forward.

Citations

Statutes:
- A.C.A. § 14-17-203 (county planning boards)
- A.C.A. § 14-17-204 (compensation, including subsection (c) referenced in Question 5)

Cases:
- City of Pine Bluff v. Southern States Police Benevolent Ass'n, Inc., 373 Ark. 573, 285 S.W.3d 217 (2008)
- City of Ward v. Ward Water & Sewer System by Pehosh, 280 Ark. 177, 655 S.W.2d 454 (1983)
- Williams v. Dent, 207 Ark. 440, 181 S.W.2d 29 (1944)
- Carswell v. Hammock, 127 Ark. 110, 191 S.W. 935 (1917)
- Patton v. Vaughan, 39 Ark. 211 (1882)
- Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998)
- Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85
- Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952)
- JurisDictionUSA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 183 S.W.3d 560 (2004)

Other AG opinions referenced:
- Opinion 2025-032 (effective date of non-emergency 2025 acts)
- Opinion 2008-116 (legislative silence on retroactivity)
- Opinions 2002-328, 2017-112 (planning commission membership as a "civil office")

Source

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

Original opinion text

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-068
November 18, 2025
The Honorable Clint Penzo
State Senator
Post Office Box 7988
Springdale, Arkansas 72766

Dear Senator Penzo:

I am writing in response to your request for my opinion concerning Act 519 of 2025.

You report that in light of Act 519, which requires the majority of the voting members of a county planning board to reside in unincorporated areas of the county, a quorum court was advised by legal counsel "to disband the existing planning board and reappoint all new members to comply with the newly established requirement." You also note that "an opposing interpretation asserts that existing, lawfully appointed and confirmed board members should be allowed to serve the remainder of their terms, with future appointments used to gradually rebalance the board" to comply with the act.

Because Act 519 of 2025 did not contain an emergency clause or other specified effective date, it went into effect on August 5, 2025. The act applies to planning boards created before and after its passage.

Against this background, you ask the following questions:

1. Does Act 519 require counties to immediately restructure their planning boards to comply with the rural residency requirement? Or may counties allow existing planning board members to finish their current terms, bringing the board into compliance through attrition and future appointments?

2. If immediate compliance with Act 519 is required, may counties simply add members to their boards (within the twelve-member limit under 203(a)) to achieve the ratio required by Act 519 instead of eliminating existing members?

Brief response: In response to your first two questions, Act 519 is currently in effect and applies to county planning boards created before and after its passage. This opinion discusses the four potential paths to compliance that you have raised: (1) addition; (2) attrition; (3) dissolution; or (4) subtraction.

3. Would the act of removing all members on an existing planning board prior to the expiration of their four-year term (and not for cause) expose a county to potential litigation:
   a. From members of the existing board who happen to reside in an unincorporated area of the county and who, despite not being a part of the problem Act 519 seeks to remedy, are nevertheless thrown out with the bath water?
   b. From all members who are prematurely removed given that, at the very most, Act 519 only requires a change of membership to a simple majority of its members to achieve the required ratio and thus never necessitates a wholesale removal of existing members?

4. Conversely, if the entire board is not removed, would the county be exposed to potential litigation for arbitrarily removing some members from office while arbitrarily leaving others to continue in their service?

Brief response: In response to questions 3 and 4, both the likelihood of litigation and exposure to liability are generally outside the scope of an Attorney General opinion and should be addressed by the appropriate legal counsel. But concerning "arbitrarily removing some members from office while arbitrarily leaving others," the government cannot "arbitrarily" remove a planning board member because members can be removed only for cause.

5. What, if any, due process rights are owed to existing members who may be stripped of their positions (and their compensation under 204(c)) if Act 519 is read to require immediate removal of some or all members on county planning boards?

Brief response: Members of a county planning board who serve for a fixed term and who may be removed only "for cause" have a property interest in their positions and should be given reasonable notice and a fair opportunity to be heard before removal.

6. If Act 519 does require the removal of some or all of the current members on county planning boards, which county official or officials are legally authorized to decide who and how many members will be removed to comply with the Act?

Brief response: If, for reasons discussed in the opinion, the member is a de facto officer, he or she can be removed by a court through a quo warranto action. Outside of such an action, the county judge may recommend removal for cause subject to the quorum court's confirmation.

7. Once Act 519 takes effect, will county planning boards lose their lawful authority to act until they have satisfied this new residency ratio requirement?

Brief response: Even if a board loses its lawful authority because it fails to meet Act 519's residency requirements, the acts of the members as de facto officers would be valid until such officers are removed through a quo warranto proceeding.

DISCUSSION

Question 1: Does Act 519 require counties to immediately restructure their planning boards to comply with the rural residency requirement? Or may counties allow existing planning board members to finish their current terms, bringing the board into compliance through attrition and future appointments?

Question 2: If immediate compliance with Act 519 is required, may counties simply add members to their boards (within the twelve-member limit under 203(a)) to achieve the ratio required by Act 519 instead of eliminating existing members?

1. Act 519's requirements. Act 519 of 2025, which amends A.C.A. § 14-17-203(a), requires a "majority of the voting members of the county planning board" to "reside in an unincorporated area of the county." The act, however, does not identify how county planning boards are supposed to comply with that new requirement. Your questions concern how a board can come into compliance.

2. Compliance. If the majority of a board's voting members do not reside in an unincorporated area of the county, the board's configuration does not comply with Act 519. Does this mean that the only way to comply is to remove individual current members or dissolve the entire board? It does not. There is more than one way to restructure the board, and you specifically ask about four options: (1) addition; (2) attrition; (3) dissolution; or (4) subtraction.

2.1. Addition. If the seats on the board can lawfully be increased, the county judge may appoint additional members to the county planning board, subject to the quorum court confirming the appointments, as long as the total number of members remains between five and twelve. This method allows the county to comply without removing any current member or dissolving the entire board.

2.2. Attrition. If the county planning board cannot add enough new members to meet Act 519's requirements, it can reduce the number of nonrural members through attrition, allowing current members to serve out their terms and replacing them with rural residents as vacancies arise. But this path means the board remains out of step with Act 519 until the majority of members reside in an unincorporated area of the county.

2.3. Dissolution. No statute or constitutional provision expressly authorizes a county government to dissolve a county planning board, but no statute or constitutional provision prohibits it either. Creating a county planning board is permissive: "the county judge of any county may create a county planning board," subject to the quorum court's approval. And a quorum court may "elect to assume the powers, duties, and functions of the board" if "implemented by ordinance." The Arkansas Supreme Court has held that when a municipality has the authority to create a commission, it also has inherent authority to abolish it, provided there are no constitutional or statutory restrictions.

Generally, abolishing a board or commission is not the same as removing members from the board. While dissolving or abolishing a county planning board may have "the obvious effect of separating" individual board members from their positions, the member "has not been removed[;] the office itself has been terminated." Arkansas Code § 14-17-203 provides for the mechanism by which board members can be removed, but it should not be read to curtail the power of the county judge and quorum court to undo what they are "empowered to do."

But if the county judge and quorum court seek to dissolve or abolish the board as pretext for removing certain members to be replaced by others, courts may treat the acts as "removals" under A.C.A. § 14-17-203, triggering A.C.A. § 14-17-203(b)'s "for cause" requirement, as discussed below.

2.4. Subtraction. To achieve Act 519's requirements by subtracting, or removing, individual members before their terms have expired, the county judge must recommend removal "for cause," and the quorum court must confirm the recommendation. The applicable statutes do not define "for cause" or "cause." But the Arkansas Supreme Court has determined that "cause" in this context means "any act of commission or omission that would stamp the person in question as unfit to occupy the position," such as misconduct. Further, it must be a "legal cause" that "specially relates to and affects the administration of the office" and "directly affect[s] the rights and interests of the public." Where an "appointing power may remove for cause," the appointing authority is also the "sole judge of the existence of the cause."

The question, then, is whether statutory amendments by the General Assembly, such as those changing the required make-up of a county planning board, constitute sufficient cause for removal. While some current board members may not reside in an unincorporated area of the county, a court likely would not find that this fact qualifies as a "legal cause" for removal because it does not reflect an "act of commission or omission" or misconduct by the individual member.

3. Retroactivity. One might be concerned that Act 519's application to boards created before the act went into effect would render the Act retroactive. But, for reasons explained below, I do not believe that is the case.

An act is retroactive if it expressly or impliedly alters the legal consequences of a past action or event. Courts presume that the General Assembly intends for its laws to apply only prospectively to future acts and events. Laws should not be read as being retroactive if they may reasonably be read otherwise, and any doubt must be "resolved against retroactivity."

Act 519 is not retroactive. It does not expressly state or "clearly implicate" that it applies retroactively. Therefore, the presumption against retroactivity is not overcome and the act will not be considered retroactive. If the majority of the voting members of a county planning board do not reside in an unincorporated area of the county, the board must determine the best path to comply.

Question 3: Would the act of removing all members on an existing planning board prior to the expiration of their four-year term (and not for cause) expose a county to potential litigation:
a. From members of the existing board who happen to reside in an unincorporated area of the county and who, despite not being a part of the problem Act 519 seeks to remedy, are nevertheless thrown out with the bath water?
b. From all members who are prematurely removed given that, at the very most, Act 519 only requires a change of membership to a simple majority of its members to achieve the required ratio and thus never necessitates a wholesale removal of existing members?

Question 4: Conversely, if the entire board is not removed, would the county be exposed to potential litigation for arbitrarily removing some members from office while arbitrarily leaving others to continue in their service?

While anyone can file a lawsuit, both the likelihood of litigation and exposure to liability are generally outside the scope of an Attorney General opinion and should be addressed by the appropriate legal counsel.

On your question concerning "arbitrarily removing some members from office while arbitrarily leaving others," the government cannot "arbitrarily" remove a planning board member because members can be removed only "for cause," as discussed above. Below I will analyze whether due process rights may apply. Additionally, if for reasons discussed further below, the member is a de facto officer, he or she can be removed by a court through a quo warranto action.

Question 5: What, if any, due process rights are owed to existing members who may be stripped of their positions (and their compensation under 204(c)) if Act 519 is read to require immediate removal of some or all members on county planning boards?

To establish a procedural due process violation under either the U.S. Constitution or the Arkansas Constitution in this context, a board member must first show that he or she has a property interest in the planning board membership and that a government's acts deprived the member of that property interest without notice or an opportunity to be heard. Thus, the key question is whether a board member has a property interest in continued membership on the board. If not, due process protections do not apply.

A property interest must arise from a source independent of the constitution, such as state law or a contract. When an appointed public "officer" does not serve at the pleasure of another official, but instead holds office subject to removal for specified reasons, that officer has a property interest in the position and must be given notice and an opportunity to be heard before removal. These due process safeguards also apply if an officer is appointed to a fixed term and can only be removed "for cause," even if the statute does not provide specific grounds for removal.

A public "office" typically involves the exercise of some of the State's sovereign power; its tenure, compensation, and duties are typically fixed by law; and the position typically requires the taking of "an oath of office, the receipt of a formal commission, and the giving of a bond, although no single factor is ever conclusive." Based on these characteristics, a county planning board member position is best classified as a public "officer" for purposes of a due process analysis.

Accordingly, members of a county planning board who serve for a fixed term and may be removed only "for cause" have a property interest in their positions and should be given reasonable notice and a fair opportunity to be heard via a hearing before removal.

As discussed above, however, when the board or position is abolished, individual members are not being "removed." In such circumstances, due process protections, notice and a hearing, are not required. But again, if the county judge and quorum court seek to dissolve or abolish the board as pretext for removing certain members and replacing them with others, such acts would likely constitute "removals" under A.C.A. § 14-17-203. In that event, affected members would be entitled to reasonable notice and an opportunity to be heard, including a fair proceeding.

Question 6: If Act 519 does require the removal of some or all of the current members on county planning boards, which county official or officials are legally authorized to decide who and how many members will be removed to comply with the Act?

The authority to remove a county planning board member depends on the method of removal. If, for reasons discussed further below, the member is a de facto officer, he or she can be removed by a court through a quo warranto action. Outside of such an action, the county judge may recommend removal for cause subject to the quorum court's confirmation.

Question 7: Once Act 519 takes effect, will county planning boards lose their lawful authority to act until they have satisfied this new residency ratio requirement?

Even if a board loses its lawful authority because it fails to meet Act 519's residency requirements, the acts of the board, through its members, could still be valid under the "de facto officer rule." Under that rule, someone who discharges the duty of an office under the color of title (such as being lawfully appointed as a board member) is considered a de facto officer, and public acts of a de facto officer are legally valid. A de facto officer "may continue to exercise the power and authority of the office until removed." The authority of de facto officers can be challenged in a particular proceeding under quo warranto, the only way to remove a de facto officer. In addition to removing such a person from office, a court could order a de facto officer to reimburse the compensation or expenses received as a de facto officer. But these remedies are only available through a direct legal challenge, not through a collateral attack that does not directly concern the eligibility of the officer.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General