Eureka Springs City Council member Bill Ott will pay the city $1,000 to settle a lawsuit Ott filed in 2021.
The city council approved the settlement agreement at its regular meeting Monday night.
“The actual legal issues involved are not worth litigating,” city attorney Forrest Jacobi told the council. “We could tie this thing up for years and it cost us a lot of money and there’s no clear resolution. I think it’s in the best interests of the city that we simply settle it.”
The suit, filed in November 2021 in Carroll County Circuit Court, stems from Ott’s efforts to repair damage to his home on Pine Street. The damage occurred in May 2021, when a city truck “jumped out of gear” and ran into Ott’s porch, the complaint says.
Because his home is located in the historic district, Ott needed approval from the city’s Historic District Commission before proceeding with repairs. According to the complaint filed on Ott’s behalf by local attorney Wade Williams, Ott submitted an application to repair and replace the front porch of his residence to the HDC in late June 2021.
The HDC approved Ott’s application and a certificate of appropriateness was issued in July 2021, the complaint says. However, after the work was completed, Ott was served a notice of code violation by the city, the complaint says. The notice says the work was unapproved and that materials used in the work also were not approved.
Ott then filed a second application with the HDC, seeking approval of the completed work, according to the complaint. That application was denied last October with no reason for the denial being provided, according to the complaint. Before the denial, HDC commissioners were presented with a memorandum from the city’s historic preservation officer, who recommended approval of the application.
The lawsuit asked the court to issue an injunction that would prevent the city from denying approval for the work on Ott’s home or holding Ott liable for any alleged violation or annul the denial of Ott’s application and declare it approved.
Then-city attorney Tim Weaver later filed a motion asking the court to dismiss Ott’s complaint.
“We are offered a settlement where Bill admits that he did not properly control the construction there and he’s willing to pay a $1,000 fine to the city,” Jacobi said at Monday’s council meeting. “…I don’t think it serves anyone’s best interest to order someone to tear down part of their house or change any of the remodeling they did because it violated some of the thing.
“He’ll pay $1,000, he admits he’s wrong and we will bury this lawsuit and move forward.”
Council member Melissa Greene questioned how to prevent similar lawsuits in the future.
“Are our laws not strong enough?” Greene asked Jacobi. “I’m not advocating that he have to rip it down or whatever, but are our laws not strong enough to win this in court?”
Jacobi responded, “There are a lot of issues that I don’t have time to talk about concerning various things.”
“It gets very complicated,” he said. “And again, if we want to fight this for years, and he’s quite capable of appealing and going on and on and on and again, there will not necessarily be a clear resolution in anyone’s favor.
“So, rather than going forward with a lawsuit that’s very unclear, I think we should just resolve it and keep going.”
The council approved the settlement 5-0 with Ott abstaining.
CAPC UNCERTAINTIES
In other discussion, council member Autumn Slane discussed her concerns with the City Advertising and Promotion Commission canceling both its August workshop and its regular meeting, which was scheduled for Wednesday, Aug. 25, because of a lack of quorum.
The July regular meeting also failed to meet a quorum when commission chair Jeff Carter, vice chair Patrick Burnett and commissioner Carol Wright were absent and Slane, along with commissioner Nick Roberts, left before the meeting started.
No official reason was given for the cancellation of the August meeting, but Slane told council members it was because various commissioners were on vacation.
“There’s really been a pretty bad lack of communication when these people will return …,” Slane told council members. “I know I’ve went on vacation several times and I Zoom in, so for me, I don’t really understand what’s going on, but at this point, the CAPC is at a complete stall.
“We don’t have a quorum and I don’t know when we’re going to get a quorum.”
A concern, according to Slane, continues to be the expiration of two commissioners’ terms on June 30. One of those commissioners, James DeVito, later resigned. The other, Wright, will remain in her seat until a new commissioner is appointed.
“My concern is our candidates; they are now getting to the point [of being] frustrated. … Most of them applied back in January. So, it’s been, you know, a good eight months since they’ve turned in their application and basically not even talked about at the meetings or anything like that.”
Slane told the council that it took the CAPC “nine months” to fill the seat vacated by former commissioner Bobbie Foster.
“And I’m just really trying to not allow that to happen again,” Slane said.
Slane made a motion and nominated Heather Wilson to be appointed to the CAPC, but fellow council members didn’t believe they have the authority to appoint a commissioner.
“As much as I agree with you on those positions, [they] need to be filled as quickly as possible, I don’t think that we can, without some kind of process, overstep the … CAPC either,” council member Terry McClung said. “I’m not sure how we can go about doing that and we can’t do just willy nilly.
But you know, there’s no reason that you don’t go six weeks without a meeting of any sorts … that just doesn’t happen. So, I don’t know what we can do to correct that, but that is something we may have to look at.”
Slane then asked Mayor Butch Berry what his plan was to appoint a CAPC member to the at-large position, but he reminded her that once he appoints the initial at-large member, it’s up to the commission to nominate and approve a replacement.
“So, what is your goal or decision-making as far as this, [or] is going to just continue like this for the rest of the year?” Slane asked Berry.
“Ms. Slane, I don’t really want to get into it … you [still] have six people on the CAPC at this point in time.”
“But nobody’s attending the meetings,” Slane said.
“Because of vacation,” Berry responded.
“That you can Zoom into,” Slane said.
The discussion about the CAPC concluded with McClung requesting that Berry encourage the commission to “get cohesive.”
“There needs to be some encouragement, I think, coming from the mayor’s office,” McClung said.
“I would certainly be glad to do that,” Berry replied.
CAMPING ORDINANCE
The council approved 4-2 the third and final reading of an ordinance that would regulate camping on private property.
Slane and Roberts voted against the ordinance which will fine individuals who are camping on private party and a complaint is made to police.
“As I’ve said before, I do not like this ordinance,” Slane said. “…I still feel like it’s an infringement on privacy, on private property.”
Greene mentioned that she feels amendments to the ordinance would be in the works through the planning commission to clear up some confusions.
“Most people in this town are very reasonable and there’s not a problem,” Jacobi said prior to the vote. “But when there is a problem, we have to have some way to deal with it. This ordinance is an attempt to do so. It can be amended. It can be changed. It can be not passed. It can be revoked. So, this just gives us a tool to deal with the situation if there is a problem.”
FIRE DEPT. CONCERNS
Roberts continued to try to voice his concerns to the council over budget and other issues with the fire department.
Berry said he had a hard time adding the issue to the agenda for the meeting since budgetary issues were the only subject the council could discuss and repeatedly reminded Roberts of that during Robert’s remarks.
“If you want to discuss the details of salary, information, overtime, please do so,” Berry said.
“I was getting to that page, so if you’d stop interrupting me and being rude,” Roberts responded.
“Mr. Roberts, I was giving you the parameters with which to discuss,” Berry replied.
Roberts went on to discuss the amount of overtime being paid in the department, but was again diverted when Berry said those issues were talked about at the beginning of the year and would be talked about again during 2023 budget talks.
TWO APPROVALS
The council also unanimously approved a resolution waiving the bidding process and earmarking $80,000 for the purchase of two new police vehicles. One of the vehicles, council member Harry Meyer pointed out and Berry seemed to confirm, is already being driven by police chief Brian Young.
The council also approved 5-0 the annual property tax levy.
