Out of Arkansas - Toes Up

The cell tower as proposed by Smith Communications, a Limited Liability Company, is 132 feet taller than the Christ of the Ozarks statue. Those who want to take home a photograph of the statue will most likely be bringing home an uninvited companion, a 185-foot cell tower.

Whose fault is this? On Sept. 10, 2009 the Planning Commission denied Smith's application for a conditional use permit, which is a privilege, not a right, meaning the commission, by law, is not required to issue the permit.

The permit was denied after public hearings and discussions about how the cell tower would affect the city, tourism, the large residential area contiguous to the tower, the precedence of building a tower in the Historic District and researching more appropriate sites for a tower.

On Sept. 25, 2009 Smith filed for an appeal of the Planning Commission's denial from City Council. Council upheld the denial and Smith forthwith filed a lawsuit in federal court whereby Council went toes up in a Feb. 8, 2010 special meeting of only four members, who voted to accept a settlement with Smith on the advice of Municipal League attorney Rob Beard, who said fighting the suit was "an uphill battle."

'Boo!'

Folks, since when do we go toes up when somebody says "boo." This is the lowest point in our town's history. On March 3, 2010 the Historic District Commission (HDC) debated granting Smith a Certificate of Appropriateness which, in this situation, means allowing or denying Smith to build a cell tower at 5 Judah Street (a residential street).

The HDC has the authority as exercised in denying satellite dishes on homes, building fences too tall, allowing aluminum or clad chimneys, etc.

To the HDC's credit is the following: "In 1970 Eureka Springs was the first Historic District in Arkansas placed on the National Register of Historic Places. In 2005, a nomination was approved by the National Park Service that established Eureka Springs as a Nationally Significant District on the National Register of Historic Places‚ making us the only one in Arkansas."

A 40-year struggle

Folks, those honors are high praise, and all of us have followed the rules that made these honors possible, but now some faceless corporation (AT&T) has hired a lawyer, formerly with the Municipal League, to build a 185-foot tower in the middle of what we have struggled to improve and preserve for the past 40 years.

Well, "it ain't over 'till it's over." We still have an opportunity to deny Smith's Certificate of Appropriateness. Our City Council and commissions abide by Roberts Rules of Order. According to the rules, voting members of the political body may change their vote at any time up to the announcement by the chairman of the total votes cast, after which no one can cast a vote.

The chairman of the HDC announced the vote as three "yes" votes and two "no" votes, which means the motion to approve the Certificate of Appropriateness failed, despite an HDC member reminding the chairman that it takes four votes to pass the motion. He immediately voted yes, but he was too late because he had already announced the vote as 3 to 2.

Now what?

What's next? Roberts Rules: "Any vote taken by an assembly, except those mentioned further on, may be rescinded by a majority vote, provided notice of the motion has been given at the previous meeting or in the call [Agenda] for this meeting; or it may be rescinded without notice by a two-thirds vote [5 votes to pass], or by a vote of a majority of the entire membership [also 5 votes].

Apparently, if the HDC wants to approve Smith's Certificate of Appropriateness, there is a need for a second vote by the HDC, and reportedly there is a petition signed by 400 people who did not want the tower, as opposed to four Council members and three HDC members who did.