City Council takes Clark lawsuit, residential lodging issues off table; heads for showdown with police over manpower

Thursday, November 29, 2012

In one of its final meetings, the lame duck Eureka Springs City Council continued to struggle with some issues at its Tuesday night meeting -- moved from its usual Monday time slot because of a scheduling conflict -- and took other issues off the table altogether.

One topic no longer in the crosshairs is the business licenses issued months ago to 10 individuals that allowed them to operate lodging facilities in R-1 neighborhoods, which are strictly residential and only allowed to rent rooms to tourists with a Conditional Use Permit.

None of the 10 qualified for a CUP, but they were allowed business licenses ahead of a moratorium that was put in place to prevent further business licenses being issued in that category until council could figure out how to deal with the issue of residential rentals.

According to City Attorney Tim Weaver, the whole problem arose as a misunderstanding of city code. "The code does permit seven-day rentals in residential areas, but not for tourists," Weaver said. "'Seven day rental' is a term used throughout the state for rentals to people who want to reside in a city to work or for other reasons, but not tourists. There's a loophole in our code in that we say if you rent rooms out for shorter than 30 days, then you have to pay CAPC tax. But that doesn't mean you can turn around and start renting to tourists. The business license does not give anyone a right do run an improper business. It doesn't give you the right to do anything except not be taken to court for running a business without a license."

Planning Commission Chairwoman Beverly Blankenship and others argued that city code was actually just fine the way it was, but that it only needed proper enforcement.

Alderman Ken Pownall argued that if a person rents a house out for any length of time, that is a business transaction, therefore by that interpretation no one should be to rent out anything in an R-1 zoned area.

"Sounds good to me," added Alderman Parker Raphael.

In the end, the council voted to refund the license fees to the 10 license holders in question, and the issue was taken off the table.

Nellie Clark lawsuit

On the issue of the Nellie Clark lawsuit, Weaver explained the Arkansas Municipal League, representing the city, has filed paperwork to have the case sent on to the state Supreme Court. He said there had been a time period when the city could have negotiated a settlement with Clark, but that that time frame had passed.

The problem goes back a year, when Public Works inadvertently forced sewage back into Clark's house while attempting to flush her lines with city equipment. Although a city employee did help clean up the mess, Clark has subsequently sued the city.

"Unless you direct our attorney to enter into further negotiations with Ms. Clark's attorney, the case is now filed to be presented to the Court of Appeals, most likely the state Supreme Court," he said.

Given that the issue was in court, the council voted to remove the item from the council's agenda.

Police jobs on line?

In another contentious issue that has bounced around for weeks, Aldermen Karen Lindblad and Lany Ballance again brought forward the issue of a state requirement that City Council shall decide the number of police officers working for the city by general ordinance.

The mayor's office and several other aldermen had argued previously that the number of officers is set during the budget process, therefore it is inappropriate to tackle the issue in this way.

"There's nothing this council can do in [its remaining] 35 days that's appropriate, since we haven't been able to meet with the police chief, and state statue is currently being violated," said Pownall. "The number of officers needed drives the budget, the budget doesn't drive the number."

Previously, the council had ordered the mayor to bring the police chief in front of them for questioning as to his departmental needs. Mayor Morris Pate had vetoed the the demand at the time. On Tuesday night, he said his veto had been a response to the fact he had been ordered to do so. "You don't have that authority," he told council.

Hiring and firing city employees is typically an administrative action, outside the bailiwick of City Council.

Ballance asked, perhaps rhetorically, why the mayor's office and the police department were "so resistant to follow the law when they are in charge of law enforcement?"

Alderman James DeVito pointed out that any alderman at any time could have gone to the police chief on their own time and then come to the table to write up their own ordinance. "We didn't choose that route," he said, meaning instead they'd ordered the mayor to bring the police chief forward, and the mayor had declined the order.

"That's bullsh**," Pownall said.

Ballance added, "The state statute says we shall have a general ordinance. We've met resistance every step of the way, you all saying we don't have to do that, the mayor saying gee whiz, I'm going to be secretive and let him do what he wants and do what I want, and to heck with you people."

Alderman Butch Berry pointed out that historically the city budget had been passed as an ordinance, therefore meeting the state requirement that the city have an ordinance in place addressing the number of police officers on staff.

Pownall argued the law called for a general ordinance, not an ordinance relating to the budget.

Pownall, Lindblad and Ballance made and amended and re-amended a motion to ask the city attorney to draft an ordinance in time for the next meeting, with blanks for how many officers the city employs, and include a clause for attrition, so that the officers wouldn't immediately be fired but rather phased out through retirement or otherwise not replacing officers as they leave, until the right target number is met.

"You know I'll veto it," the mayor said, bringing cries of outrage from two aldermen at the table.

The city attorney opined "it is the budget that determines this, in that that's where you set the number of salaries. At this moment I don't know whether you're in or out of compliance with the law. I understand some of you here vehemently disagree with that, but if so you haven't pursued the issue in a legal way. As you are aware, I cannot take this issue on for myself; you have to direct me."

So they did, voting 4-2 to have Weaver draw up an ordinance for the next meeting, if possible, with an emergency clause, which means if they pass the ordinance they can go ahead and put it into action without waiting the 30 days ordinances typically get before they kick in.

Finally, Pownall made a motion the council go into executive session on discuss a personnel matter, one of the few issues in which a council may go into executive session. Once the press was allowed back inside the room, Pownall made the motion that no action be taken on the issue -- on the meeting's agenda the topic had been who was and was not allowed to sign city checks. Council agreed 4-2 to let it go, though Lindblad and Ballance shouted "No!"

View 1 comment
Note: The nature of the Internet makes it impractical for our staff to review every comment. Please note that those who post comments on this website may do so using a screen name, which may or may not reflect a website user's actual name. Readers should be careful not to assign comments to real people who may have names similar to screen names. Refrain from obscenity in your comments, and to keep discussions civil, don't say anything in a way your grandmother would be ashamed to read.
  • Wow, some real class acts on the council!

    -- Posted by jetman on Thu, Nov 29, 2012, at 8:41 PM
Respond to this story

Posting a comment requires free registration: