Opinion No.

The Honorable Monty Davenport State Representative 644 MC 4003 Yellville, AR 72687

Dear Representative Davenport:

I am writing in response to your request for an opinion on the following:

Can a county enact setbacks on county roads?

RESPONSE

In my opinion, A.C.A. §§ 14-17-201 through 14-17-211 (Repl. 1998 Supp. 2005) provide that either the county planning board or the quorum court, if the quorum court has chosen to specifically retain the powers of a county planning board through an ordinance, has the authority to either recommend a setback line to the quorum court or to pass an ordinance detailing the setback distance from "major streets and highways" in conjunction with the county plan contemplated in the section.

The Arkansas Code discusses setback provisions by counties only in the subchapter dealing with the county planning board. The quorum court may retain the powers of a county planning board if it so chooses and so designates by ordinance. A.C.A. §14-17-203(f) (Repl. 1998). Arkansas Code Annotated § 14-17-207 (Supp. 2005), states in pertinent part:

(a) The county planning board, by majority vote of its entire membership, may recommend to the county quorum court the adoption, revision, or rescission of an official plan for the county or zoning, subdivision, setback, or entry control ordinances referred to as implementing ordinances in this subchapter.

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(f) The quorum court shall provide for the means of enforcing the official plan or zoning, subdivision, setback, and entry control ordinances, shall provide remedies for violations, and may seek appropriate remedies for violations. . . . [.]

Id. The Code further states in pertinent part:

(j) When an official road plan has been adopted and filed as provided for in § 14-17-207, the [quorum] court, upon recommendation of the county planning board, may enact ordinances establishing setback lines on the major streets and highways as are designated by the plan and may prohibit the establishment of any structures or other improvements within the setback lines.

A.C.A. § 14-17-208(j) (Supp. 2005).

Whether a particular road is a "major street or highway" is a question of fact that I cannot resolve in the abstract. Generally speaking, however, a county has the authority to promulgate and enforce setback requirements for those roadways as detailed above.

Assistant Attorney General Joel DiPippa prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB:JMD/cyh