The Eureka Springs City Council’s stamp of approval on a recommendation by city attorney Forrest Jacobi to settle a lawsuit filed against the city by council member Bill Ott has drawn the ire of the city’s historic district commission.
At their Sept. 7 regular meeting, historic district commission members voiced concerns over Jacobi’s advice — and the council’s OK — to accept the settlement, which simply called for Ott to pay a $1,000 fine but didn’t mention anything forcing the council member to make any further modifications to his home.
“Allowing one of the homeowners to keep his non-approved, non-conforming porch, I think sets a precedent that denigrates any kind of work that the HDC does,” commissioner Marty Cogan said during the public comments portion of the meeting. “It takes away the power of the HDC to address what people do or did not do to their historic properties.
“The consensus seems to be you just pay a fine and do what you damn well please. And I think that is absolutely wrong.”
Jacobi told the city council at its Aug. 22 meeting that the legal issues in the lawsuit filed by Ott in 2021 “are not worth litigating.”
“We could tie this thing up for years and it cost us a lot of money and there’s no clear resolution,” Jacobi said. “I think it’s in the best interests of the city that we simply settle it.”
The suit, filed last November 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 applied to repair and replace the front porch of his residence to the HDC in late June.
The HDC approved Ott’s application and a certificate of appropriateness was issued in July, 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 in 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.
“We are offered a settlement where Bill admits that he did not properly control the construction there and he’s willing to pay $1,000 fine to the city,” Jacobi said at the August 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.”
At the Sept. 7 HDC meeting, however, commissioners questioned why Jacobi didn’t let the HDC have a part in the decision and maintained that Ott still doesn’t have a certificate of appropriateness for the work that was completed.
“I just wonder how the [city] attorney got involved in this because he doesn’t know a thing about the history of this,” Cogan said. “… I think that was a very poor decision and whoever made that decision.”
Commissioner Judy Holden said the HDC “was not approached at all” about the decision to settle the lawsuit.
“I was very disappointed with the decision that was made by the lawyer, and I feel as a commission that we should do something about it,” Holden said. “We should voice our concerns to council. I honestly am very disappointed that we were not approached or asked our opinion.”
HDC chair Steve Holifield, however, said Jacobi did reach out to him about it.
“The city attorney called me a couple of times, asked me what I thought happened with the application and then the proposed fine,” Holifield said. “I have real concerns … In our opening statement, we say ‘approval, approval with modifications, denial, or deferral for more information. Appeal of denial may be made to the circuit court.’ “This person didn’t go to circuit court. They went straight to a lawyer and sued the city directly. So, they went around the appeals process, and the fact that the city can say, yes, we’ll give you a $1,000 fine or $100,000 fine, doesn’t make any difference. The Historic District Commission never approved this property being the way it is, so he will not get a certificate of approval. I’m not sure if that really means anything or not.
“So, that’s the problem. So, we need to go to our city council members and say this is our concern, what’s going on here. It’s just setting the precedence where someone can say, ‘well, I don’t want to go to circuit court, I’ll just hire my lawyer and sue the city and then they will settle and then I can get what I want for $1,000.’ … I think the council needs to address this issue.”
Holifield is running against Ott for the Ward 2, Position 2, seat on the city council in the Nov. 8 general election.
Eureka Springs resident Pat Matsukis, who also spoke during the public comments portion of the meeting, said she was the one who filed the complaint about Ott’s property on Pine Street and was also surprised by the settlement decision.
“Did you have a meeting that said ‘We accept $1,000 and the fact that he doesn’t have to make these changes?’ ” Matsukis asked the commission, which drew a “no” comment from at least one commissioner.
“I would encourage you as a unit to write a letter to the mayor and the city council because if you are not being respected, if you are not being heard, we’ve got a problem,” Matsukis said. “Forrest, God love him, he’s a friend of mine and I’ve got no issue with Forrest as a human being, but he made a really bad decision based on who decided this. … If you [the HDC] are not being heard, then why should I ever come in front of this body again and ask permission for anything?”
