The Honorable Jack Critcher State Representative P.O. Box 79 Grubbs, Arkansas 72431
Dear Representative Critcher:
This is in response to your request for an opinion on the following question:
If an unincorporated community has taken all steps to become incorporated except a municipality within five miles will not pass a resolution consenting to the incorporation, will a river that is between the incorporated community and municipality form a natural barrier, therefore making it unnecessary for the municipality in question to pass a resolution?
It is my opinion that the answer to your question will depend, as a factual matter, on whether the river in question makes the area to be incorporated "inaccessible" to the existing municipality.
The relevant statute, as you have noted, is A.C.A. § 14-38-101 (1987). Subsection (b) thereof provides as follows:
(b)(1) The court shall not approve the incorporation of any municipality if any portion of the territory proposed to be embraced in the incorporated town shall lie within five (5) miles from the corporate limits of an existing municipal corporation unless the governing body of the municipal corporation has, by written resolution, affirmatively consented to the incorporation.
(2)(A) The five-mile limitation shall not apply if the area proposed to be incorporated is separated from the corporate limits of an existing municipality by a natural barrier that makes the area to be incorporated inaccessible to the existing municipality.
You have indicated that there is a river between the unincorporated community and the municipality. The statute, however, requires a determination as to whether this river is "a natural barrier that makes the area to be incorporated inaccessible to the existing municipality." This is a factual question which this office is unable to answer in a bare legal opinion. The terms "natural barrier" and "inaccessible" are not defined in the relevant statute. Neither are they defined in any Arkansas statute or case which I have found. Webster's Seventh NewCollegiate Dictionary (1972) defines the term "barrier," among other meanings, as "a factor that tends to restrict the free movement and mingling of individuals or populations." Id. at 71. The same text defines the word "inaccessible" as "not accessible." Id. at 421. The word "accessible" is defined as "easy of access." Id. at 5.
All of these definitions, and the particular facts and circumstances surrounding this river (including the existence of any bridge or other means of easy access over the river), would have to be taken into account in determining whether the river in question forms a "natural barrier" that makes the area to be incorporated inaccessible to the existing municipality. The question, therefore, will ultimately have to be decided by a trier of fact — that is, by a judge or jury.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:ECW/cyh