Ms. Joan Baldridge Director, Department of Arkansas Heritage Suite 200 225 East Markham Little Rock, AR 72201

Dear Ms. Baldridge:

This is in response to your request for an opinion on whether the state enabling legislation for historic districts (A.C.A. §14-172-201 et seq.) precludes the establishment of a historic district simply because it is not specified, or if a county may also develop a historic district.

As noted in your request, A.C.A. § 14-172-201 et seq. (the Arkansas "Historic Districts Act") only specifies cities or towns, and not counties. It is therefore clear that a county cannot establish a historic district under that act. Had the General Assembly intended for counties to participate in that legislation, it could easily have so provided.

A county may, however, in my opinion, be certified to participate under the relevant provisions of the federal National Historic Preservation Act. See 16 U.S.C.A. § 470 et seq. The mechanism provided by the Historic Arkansas Preservation Program, as the approved "State program" under the federal legislation, will be controlling in this regard. See16 U.S.C.A. § 470a(c)(1). Subsection (c)(1) of § 470a of Title 16 states that "[a]ny local government shall be certified to participate under the provisions of this section if the applicable State Historic Preservation Officer, and the [Secretary of the Interior], certifies that the local government —

(A) enforces appropriate State or local legislation for the designation and protection of historic properties;

(B) has established an adequate and qualified historic preservation review commission by State or local legislation;

(C) maintains a system for the survey and inventory of historic properties that furthers the purposes of subsection (b) of this section;

(D) provides for adequate public participation in the local historic preservation program, including the process of recommending properties for nomination to the National Register; and

(E) satisfactorily performs the responsibilities delegated to it under this subchapter.

The term "[l]ocal government" is defined under16 U.S.C.A. § 470w(3) as "a city, county, parish, township, municipality, or burough, or any other general purpose political subdivision of any State."

The Arkansas "Historic Districts Act," supra, does not operate, in my opinion, to preclude a county from becoming a "certified local government" under the federal legislation (see16 U.S.C.A. § 470a(c)(2)(A)), so long as the federal requirements are met.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:arb