Judges: MIKE BEEBE, Attorney General
Filed Date: 8/1/2003
Status: Precedential
Modified Date: 7/5/2016
The Honorable Paul Miller State Senator Post Office Box 488 Melbourne, AR 72556-9511
Dear Senator Miller:
I am writing in response to your request for an opinion on nine questions involving various matters pertaining to the law as it applies to Cherokee Village Suburban Improvement District (hereinafter "the District" or "SID"). I will address your questions individually, in the order posed.
Question 1 — Cherokee Village Suburban District No. 1 (the District), wascreated in 1969 in accordance with the provisions of Act 41 as amended,(particularly Act 286). Proposed administrative actions by theCommissioners of the District frequently state that these are inaccordance with Chapter 14-92, from which this District is specificallyexcluded by Subchapter
Does this affect the validity of the actions so undertaken?
It must be initially noted that this question appears to be premised upon the incorrect assumption that A.C.A. §
The provisions of Acts
1981, No. 510 , shall not apply to districts in existence on March 16, 1981, and these districts shall continue to be governed by the law in effect immediately prior to that date.
With regard to your specific question, therefore, it is my opinion that the District is not excluded from all provisions of Chapter 92 of Title 14, and that the validity of actions undertaken by the District's Commissioners will be determined by considering the particular undertaking, viewed in light of the authority relevant thereto.
Question 2 — Chapter 14-92 differs significantly from Act 41 in theprocedures by which Suburban Improvement Districts are to be created. Thepowers of the Commissioners are expanded but this is balanced by therequirement that such Commissioners are to be elected, and their numbersincreased to five or seven.
If it is held that Chapter 14-92 may be used to carry out administrativeactions of the Board, does this not imply that the Board of Commissionersshould be elected?
The answer to this question is "no," in my opinion. The fact that the District's Board may act pursuant to provisions in Title 14, Chapter 92, does not mean that the Commissioners are to be elected. The selection and recall of suburban improvement district commissioners in pre-1981 districts is addressed at length in Attorney General Opinion
Question 3 — On occasion, the wording of Chapter 14-92 has beenarbitrarily amended by Legal Advisors to the District in order to changethe import of the law, presumably to serve a particular purpose.
Does this constitute impropriety?
You have provided no specific examples of such action by the District's legal advisors, but as a general matter any amendments to Title 14, Chapter 92, must be made by the General Assembly through the regular legislative process.1 Legal advisors may offer their views on how to interpret or apply these Code sections. The law is not thereby "amended," however.
Question 4 — The Community of Cherokee Village has been an incorporatedCity of the First Class since 1998, and appears to have the sameconstitutional powers as the District. These include but are not limitedto the power of Eminent Domain, ability to levy taxes, enact Ordinancesor By Laws, be responsible for the care and maintenance of streets androads, recreational facilities and other "Commons."
Does this represent double taxation of the Property Owners, and ignorethe Statutory requirement that there may not be, with, and within thesame boundaries, two or more municipalities exercising the same powers?
The answer to this question is "no," in my opinion. The concept of "double taxation" ordinarily connotes taxing the same property twice for the same purpose, by the same taxing authority. 84 C.J.S. Taxation at 131. Clearly, the City of Cherokee Village and the District are distinct entities with separate constitutional (in the case of the city) and statutory (in the case of the District) authority to levy taxes. Seegenerally Ark. Const. art.
It is also clear that the District is not a municipality. The Arkansas Supreme Court has defined a "municipality" as is "a public corporation created for governmental purposes, and having local powers of legislation and self-government. . . ." Memphis Trust Co. v. St. Francis LeveeDist.,
Question 5 — If indeed, duplication of powers is inadmissible, whichentity prevails, the SID or the City?
Because, as indicated above, the SID and the City are separate entities with distinct powers, there is generally no "duplication of powers" or question of one entity "prevailing" over the other. While it is conceivable that conflicts could arise in the exercise of the powers and duties granted under state law to the SID and those granted to the City, I cannot in the context of this opinion undertake a review of all the powers and duties granted to a municipality and a suburban improvement district or speculate as to any such potential conflicts. Subtitle 3 of Title 14 of the Arkansas Code Annotated sets forth both general and specific areas of municipal authority, and Article
Question 6 — Recent negotiations between the Board and the State LandCommissioner have resulted in the SID becoming the owner of manydelinquent lots within the District. These are now being offered for saleby a partnership which has concluded an exclusive contract with the Boardto `market' such lots. These are represented as clear of any obligationfor delinquent taxes and penalties.
Is the eventual owner liable for such delinquent taxes, or does the SID,the Board of Commissioners or the Land Commissioner have the power orauthority to extinguish or forgive such taxes?
You have provided no information as to how the SID became the "owner" of the lots through "negotiations." Nor have you identified the particular "delinquent taxes" in question. I am therefore uncertain whether this refers to general property taxes or delinquent improvement district assessments. The Commissioner of State Lands is authorized in certain instances to negotiate the sale of property that has been certified to the state for nonpayment of general taxes. See A.C.R.C. Notes to A.C.A. §
The applicability of these provisions must therefore be considered in addressing your question regarding any outstanding delinquent tax liability. As a general matter, there is no authority to extinguish or forgive, i.e., "waive" improvement district assessments. See generally
Op. Att'y Gen.
Question 7 — Does the Law require the Commissioners to file annualStatements of Financial Interest? And is the Clerk of the County Courtrequired to maintain such records?
This question should be referred to the Arkansas Ethics Commission, which by law issues advisory opinions on the requirements of Title 21, Chapter 8 pertaining to financial disclosures. See A.C.A. §
Question 8 — Under the provisions of Act 41, the Commissioners of theDistrict are self-appointed. It is generally understood that by theprovisions of Act 286, as amended, Cherokee Village Suburban ImprovementDistrict No. 1 is the only such District in the State of Arkansas.
Does this not represent arbitrary discrimination against a specific groupor class, and thus constitute a violation of our Civil Rights?
I assume by your reference to the Commissioners being "self-appointed" that you mean the procedure applicable to pre-1981 districts under which vacancies on the Board are filled by the remaining commissioners. Seeformer Ark. Stat. Ann. § 20-703. While Cherokee Village Suburban Improvement District No. 1 may, as a practical matter, be the only district in existence subject to this procedure, I must respectfully disagree with the suggestion that the provisions apply only to Cherokee Village Suburban Improvement District No. 1 as a matter of law. I have found no reference to Cherokee Village in the law, and there is language in
Question 9 — The Law (Act 41) requires the County Tax Collector tocollect SID taxes at the same time that ad valorem taxes are collected.Additionally, the Collector may not collect one without collecting theother.
Is it within the power of the SID and/or the County to enter into anagreement to circumvent this requirement or make any such agreement whichwould involve payment by the SID of ad valorem taxes, other than asprescribed by law?
In accordance with A.C.A. §
A property owner shall be required to pay applicable suburban improvement district taxes provided in this subchapter as a prerequisite to paying his ad valorem real property taxes.
A.C.A. §
I am unaware of any authority for circumventing this requirement. Applicable SID taxes must be paid before ad valorem taxes can be paid.
Regarding the SID's payment of ad valorem taxes "other than as prescribed by law," I refer you to the case of Pulaski County v. Carriage CreekImprov. Dist.,
I lack sufficient facts to determine whether this case is applicable; and in any event, this determination lies with the county assessor who must in the first instance review the particular facts and decide whether the law prescribes the payment of ad valorem taxes by the SID. Hopefully, however, this provides a sufficient legal framework for you to apply in analyzing the particular surrounding circumstances in this instance.
Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:EAW/cyh
Enclosure