Honorable Lonnie P. Clark State Representative P.O. Box 307 Berryville, AR 72616
Dear Representative Clark:
This letter is written in response to your request for our opinion as to whether an incorporated town that does not have a planning or zoning commission can pass ordinances that restrict the raising of livestock within the city limits. Based on the reasoning that follows, it is our opinion there exists no legal requirement that an incorporated town have a planning or zoning commission before it can pass such an ordinance. However, if the ordinance in question is a "zoning ordinance" (i.e., it classifies certain areas by use), then it will be subject to judicial review, if arbitrary. City of Little Rock v. Parker, 241 Ark. 381,407 S.W.2d 921, 924 (1966).
The legislature delegated to first and second class cities, along with incorporated towns, the power to regulate their growth through zoning by ordinance in two separate Acts, Act 6 of 1924, as amended (Ark. Stat. Ann. 19-2804, et seq.) and Act 186 of 1957, as amended (Ark. Stat. Ann. 19-2825, et seq.). City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664, 667 (1981). Under Act 6 of 1924, first and second class cities have authority to establish zones limiting the character of buildings that may be erected therein. Ark. Stat. Ann. 19-2805 (Repl. 1980). The city council has the authority to enact appropriate ordinances. Ark. Stat. Ann. 19-2807, 2808. There is no requirement in Act 6 that a planning or zoning commission exists prior to passing such ordinances.
Act 186 of 1957, as amended, provides an alternative statutory zoning scheme for first and second class cities and incorporated towns. Ark. Stat. Ann. 19-2825 (Repl. 1980). Under Act 186, "the legislative body of the municipality . . . may create a planning commission. . . ." Ark. Stat. Ann. 19-2825(b). The use of the word "may" indicates the legislature intended this provision to be discretionary. If an eligible municipality elects to establish a planning commission, the planning commission "may prepare a (land use) plan. . . ." Ark. Stat. Ann. 19-2827(c). Then, and only then, must the commission pass upon zoning ordinances. See Ark. Stat. Ann. 19-2827(f). When a municipality elects to proceed under Act 186, then its provisions supersede those of Act 6 of 1924. Ark. Stat. Ann. 19-2804, Compiler's Notes.
Finally, an independent ground for the town passing the ordinance in question is found in Ark. Stat. Ann. 19-2303 (Repl. 1980), which provides that municipal corporations have the power to prevent an injury or annoyance within their limits by ordinance.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Frank J. Wills.