Does the Arkansas AG need to approve a cooperation agreement between Little Rock and the Capitol Zoning District Commission?
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This page answers the general question as of 2015. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
The Little Rock Deputy City Attorney submitted a mutual cooperation agreement between the City and the Capitol Zoning District Commission (a state body that plans and zones the area around the Arkansas State Capitol). The agreement covered joint enforcement of building, safety, zoning, and health codes inside the district. She asked the AG to review and approve it under the Interlocal Cooperation Act.
AG Dustin McDaniel declined to review it, saying the Interlocal Cooperation Act did not control. Two independent reasons.
First, in 2013 the General Assembly enacted Act 1338, which became A.C.A. § 22-3-308. That statute specifically authorized the Commission and the City of Little Rock to enter cooperation and joint-regulation agreements covering planning, zoning, building permission, code enforcement, and related matters in the district. It contained its own framework, including a requirement that any City enforcement action be authorized in advance by the Commission. Critically, the statute did not require AG approval. Under the canon that a specific statute governs over a general one (citing Donoho v. Donoho), this targeted statute controlled.
Second, even setting aside the specific statute, the Interlocal Cooperation Act only governs agreements where each party could exercise the joint power independently. A.C.A. § 25-20-104(a) says public agencies may exercise jointly "powers, privileges, or authority" they already hold "alone." Here, the City of Little Rock could not enforce Capitol Zoning District regulations on its own. Its enforcement authority depended on a Commission grant. So the agreement structurally did not fit the Interlocal Cooperation Act.
A footnote pointed out that the predecessor agreement from 1977 had also never been submitted for AG approval, consistent with the long-standing view that these CZD agreements do not need it.
Currency note
This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What is the Capitol Zoning District Commission?
A state agency that maintains and revises the official master comprehensive plan for the area around the Arkansas State Capitol, to coordinate physical development with present and future needs (A.C.A. § 22-3-305(a)).
Why would Little Rock and the Commission want a cooperation agreement?
The district sits inside Little Rock's city limits. Day-to-day inspections, citations, stop-work orders, and building permits are easier to handle if the City's code-enforcement staff can act, but final authority over zoning and land use in the district stays with the Commission. A 2013 statute (Act 1338) blessed exactly that division of labor.
Why did the AG say his approval wasn't required?
Two reasons. The 2013 statute that authorized these agreements never asked for AG review. And the Interlocal Cooperation Act, which does sometimes require AG approval, only applies when both parties could independently exercise the joint power. Little Rock could not independently enforce Commission rules, so the structural prerequisite was missing.
What does the Interlocal Cooperation Act actually require?
It lets two or more Arkansas public agencies do jointly what each could do alone. Under A.C.A. § 25-20-104(f)(2), agreements made under that Act generally need AG review and approval. The 2015 opinion says that machinery does not engage when the joint activity falls outside the Act in the first place.
Does this mean the City and the Commission can act without any oversight?
No. Their agreement just runs through the specific Capitol Zoning District statute (A.C.A. § 22-3-308), which has its own internal controls, including the requirement at subsection (b)(2)(B) that the Commission authorize any City enforcement action in advance.
Background and statutory framework
The Interlocal Cooperation Act (A.C.A. §§ 25-20-101 to -108, originally Acts 1967, No. 430) lets Arkansas public agencies pool authority for joint operation. A.C.A. § 25-20-104(a) frames the basic rule: agencies may jointly exercise "any governmental powers, privileges, or authority... capable of exercise by a public agency of this state alone." A.C.A. § 25-20-104(f) requires AG review and approval of qualifying agreements.
The Capitol Zoning District Commission was created by separate legislation to plan and zone the area around the State Capitol. Acts 2013, No. 1338, codified at A.C.A. § 22-3-308, gave the Commission and the City of Little Rock a tailored framework for joint enforcement and regulation. It authorized agreements covering planning and zoning, building permission, enforcement (stop-work orders, citations, fines, inspections), and related matters. It required Commission authorization for any City enforcement action, kept Commission final authority intact, and made violations enforceable in Little Rock District Court like ordinary municipal-ordinance violations (for violations occurring on or after August 16, 2013).
The opinion applied two rules of construction. Donoho v. Donoho and similar cases hold that a specific statute on a particular subject controls over a general one. And the textual hinge of the Interlocal Cooperation Act, the "powers capable of exercise alone" phrase, requires independent authority on both sides before the Act applies at all.
Citations
- A.C.A. § 22-3-305(a) (Repl. 2004) (Commission's master-plan duty)
- A.C.A. § 22-3-308 (Supp. 2013) (Commission/City of Little Rock cooperation framework)
- A.C.A. §§ 25-20-101 through -108 (Interlocal Cooperation Act)
- A.C.A. § 25-20-104(a) (joint exercise of powers "capable of exercise alone")
- A.C.A. § 25-20-104(f)(2) (AG review and approval requirement)
- Acts 2013, No. 1338, § 1 (enacted A.C.A. § 22-3-308)
- Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994) (specific statute controls over general)
Source
Official summary
Request for review and approval of a proposed joint cooperation agreement between the City of Little Rock and the Capitol Zoning District Commission for enforcement of building, safety, zoning and health codes within the Capitol Zoning District, and other purposes.
RESPONSE: In my opinion, the proposed agreement is not an interlocal agreement of the sort that would require my approval pursuant to the Interlocal Cooperation Act. Rather, it falls under the provisions of another statute, A.C.A. § 22-3-308 (Supp. 2013), that does not call for my review and approval.
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDaniel
Opinion No. 2014-138
January 12, 2015
Cynthia S. Dawson
Deputy City Attorney
500 W. Markham, Suite 310
Little Rock, Arkansas 72201
Dear Ms. Dawson:
You have requested my approval, pursuant to the Interlocal Cooperation Act, of an "Amended and Restated Mutual Cooperation Agreement" (the "Agreement") between the City of Little Rock (the "City") and the Capitol Zoning District Commission (the "Commission"). The Agreement calls for cooperation by the City and the Commission in what you characterize as the "enforcement of building, safety, zoning and health codes within the Capitol Zoning District."
For reasons discussed below, I do not believe the Agreement is subject to my review and approval. It appears to fall under a statute exclusively applicable to the Capitol Zoning District that does not call for review by this office. Even absent this statute, I question that the Agreement would qualify as an "interlocal agreement" subject to my review under the Interlocal Cooperation Act.
As the Agreement itself notes, the Arkansas Code, as amended by Acts 2013, No. 1338, § 1, authorizes the following cooperation between the Commission and the City:
(a) The Capitol Zoning District Commission is authorized and encouraged to coordinate the comprehensive master zoning plan, to the greatest extent it deems practical, with city, county, and other area planning agencies.
(b)(1) Subject to the requirements of due process and consistent with any applicable federal restrictions and regulations as in effect on January 1, 2013, the commission may enter into agreements with the City of Little Rock providing for mutual cooperation and joint regulation within the Capitol Zoning District with respect to:
(A) Planning and zoning;
(B) Permission to build upon or otherwise use land;
(C) Enforcement through stop work orders, citations, fines, and inspection to ensure compliance of building, safety, zoning, and health codes; and
(D) Other matters within the jurisdiction of the commission.
(2)(A) Except to the extent enforcement by the City of Little Rock is authorized in this section, an agreement under subdivision (b)(1) of this section between the City of Little Rock and the commission does not cede the commission's final authority and responsibility over the matters entrusted to it by law.
(B) All enforcement actions undertaken by the City of Little Rock under this section shall require authorization by the commission prior to the commencement of the enforcement action.
(3)(A) A violation of the commission's regulations is enforceable in Little Rock District Court in the same manner as the enforcement of a violation of a municipal ordinance.
(B) Subdivision (b)(3)(A) of this section applies only to violations that occur on or after August 16, 2013 and does not apply to work in place prior to August 16, 2013.
Subsection (b)(1) of this statute authorizes the Commission to "enter into agreements with the City of Little Rock providing for mutual cooperation and joint regulation within the Capitol Zoning District." Nothing in this statute or any other provision of the Code directs the Commission or the City to submit a proposed cooperative agreement of this sort to this office for review and approval.
To be sure, the Interlocal Cooperation Act, which the Agreement likewise recites as sanctioning the cooperative project, generally authorizes public agencies to undertake joint enterprises only subject to review and approval by this office. An agreement to undertake joint activities relating to the Capitol Zoning District, however, falls under the more particular legislation set forth above, which at no point imposes any requirement of approval by this office. Given that a general statute normally does not apply where there is a specific statute governing a particular subject matter, I do not believe my approval of the Agreement is required.
Moreover, the Agreement, while clearly falling within a category approved in the above statute, does not even appear to fall within the general parameters of the Interlocal Cooperation Act. As reflected in the following, the Interlocal Cooperation Act empowers parties to do jointly what either of the parties would be authorized to do independently:
Any governmental powers, privileges, or authority exercised or capable of exercise by a public agency of this state alone may be exercised and enjoyed jointly with any other public agency of this state which has the same powers, privileges, or authority under the law....
As reflected in subsection (b)(2)(B) of the statute set forth above, the City's authority to engage in the enforcement of Commission regulation hinges upon the City's having been authorized by the Commission to undertake such enforcement. Accordingly, because the City cannot independently enforce Commission regulations, the Agreement does not fall within the scope of the Interlocal Cooperation Act, which includes the requirement of my approval. Needless to say, to conclude as much is in no way to suggest that the parties are foreclosed from entering into the Agreement under some other authority such as the statute set forth above.
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL
Attorney General
DM/JHD:cyh
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