Opinion No.

The Honorable Sue Madison State Senator 573 Rock Cliff Road Fayetteville, AR 72701

Dear Senator Madison:

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

1. Can a millage tax "levied for the purpose of maintaining and operating a public city library" pursuant to Amendment 30 be collected and deposited in a TIF redevelopment fund?

2. Does a TIF's "total ad valorem rate" exclude, by definition," specified" i.e. special-use taxes?

RESPONSE

I must respectfully decline to answer your questions, which raise issues that I am informed will soon be the subject of a declaratory judgment action to be filed by the Fayetteville City Attorney in connection with the formation of a tax incremental financing (TIF) district, pursuant to Ark. Const. amend. 78 and A.C.A. § 14-168-301 to -322 (Supp. 2003), with the incremental increase in certain property tax revenues to be dedicated to retiring debt incurred to renovate the Mountain Inn in Fayetteville. More specifically, it is my understanding that the issue will be precisely what property-tax revenues will be subject to diversion to the newly created TIF district. It has long been the policy of this office to avoid rendering opinions on matters that are the subject of current or impending litigation. See Ark. Op. Att'y Gen. No. 2002-031 ("[I]n order to avoid encroaching upon exclusively judicial prerogatives, it has long been the policy of this executive-branch office to avoid rendering opinions on matters that are either pending or appear inevitably bound to be submitted to the courts for resolution."); and Ark. Op. Att'y Gen. No. 96-138 (declining to issue an opinion where litigation was imminent on the question presented, where school districts had already obtained counsel in the matter, and where the Attorney General's office was charged with the duty of defending a state agency).

I regret that I could not be of assistance in this matter.

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

Sincerely,

MIKE BEEBE Attorney General

MB:JD/cyh