Opinion No. ( 2006 )

The Honorable Robbie Wills State Representative Post Office Box 306 Conway, AR 72033-0306

Dear Representative Wills:

I am writing in response to your request for my opinion regarding the following question:

Does the Americans with Disabilities Act (ADA) require that if cities make street improvements, such as an "overlay" on an existing street, is the city required to make corresponding improvements on existing sidewalks that adjoin the section of the street being improved which have, over the years, become dilapidated or damaged from tree roots ect. [sic]?

RESPONSE

I am unable to respond to your question, which raises the intensely factual issue of whether one particular proposed construction project would accord with exclusively federal law. My advisory function as set forth at A.C.A. § 25-16-706 consists primarily of counseling state executive officers and legislators concerning general issues of state statutory and constitutional law. It does not include the essentially adjudicatory function of determining the facts in a particular situation and then counseling a city regarding the application of purely federal law. See Ark. Ops. Att'y Gen. Nos. 2004-234 and 1999-094 (declining to address questions regarding the application of the ADA to city and county construction projects).

This matter would appear to be properly addressed by the city attorney of whatever municipality is involved, possibly in consultation with the appropriate federal officials. I regret I could not be of further assistance.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB/JHD:cyh