A pair of residents have questioned the opinion of Eureka Springs City Attorney Forrest Jacobi regarding the status of a permanent entertainment district at Pine Mountain Village.
Ken Foggo and Karen Lindblad spoke about the issue during public comments at the Eureka Springs City Council’s regular meeting held Monday, Jan. 27, saying the city will be breaking the law if the ordinance isn’t held in abeyance.
“If you don’t follow the law, you are criminals, just like any ordinary citizen here would be,” Lindblad told council members. “So, I say you better put that ordinance in abeyance.”
Foggo’s comments were similar.
“Don’t break your oath,” Foggo said. “Don’t knowingly break the law.”
The comments came after the council held a special meeting on Jan. 7 to decide on a special election for a referendum that would allow voters to determine the fate of the permanent entertainment district at Pine Mountain Village. The council approved the district in September 2024 after months of discussions and public comments on the issue. Council member Harry Meyer cast the lone dissenting vote each time the issue was presented.
The ordinance took effect in late October, with stipulations that it would be effective for two years before requiring another council vote and that it can be revoked at any time at the suggestion of the city’s police or fire chief.
Lindblad, who often spoke at council meetings sternly against the permanent district, circulated a referendum petition, seeking a public vote on the ordinance. Carroll County Clerk Connie Doss wrote a letter to Lindblad and city clerk treasurer Ida Meyer on Oct. 31, informing them that she had certified 153 of the 169 petition signatures that were submitted, surpassing the total of 148 certified signatures needed to trigger a referendum.
Since the petition didn’t specifically request a special election, Jacobi said at the Jan. 7 special meeting that there was no basis to hold one. Harry Meyer agreed that no special election was requested in the referendum, but said the ordinance permitting the permanent entertainment district should be held in abeyance until the next general election in November 2026.
Jacobi disagreed with Harry Meyer’s position and with an opinion from Arkansas Municipal League attorneys that the district should be in abeyance until an election.
“… They are a legally permitted permanent entertainment district, unless the city council — which has total control over temporary and permanent things — wishes to revoke it, or change it, or otherwise,” Jacobi said at the Jan. 7 meeting when asked if the district could proceed.
Harry Meyer disagreed and noted that in 2020 a permanent downtown entertainment district was held in abeyance until the general election, which saw the district voted down.
“They didn’t have to hold it in abeyance,” Jacobi said at the Jan. 7 meeting. “That was just a courtesy, I think, to the people who signed it. There is no statutory, mandatory change in this district, a permanent entertainment district, until it goes to ballot. It can go on. It will go on until the election in 2026.”
Ida Meyer, however, said the city had received a different opinion from the Arkansas Municipal League.
“The Municipal League told us that the ordinance is not in effect until it is referred to the people,” Ida Meyer said. at the Jan. 7 meeting. “That’s what a referendum does. That’s what I was informed by the Municipal League.”
Jacobi responded at the special meeting that the Municipal League shouldn’t have even gotten involved and his interpretation of the law is that the permanent district should proceed.
Foggo and Lindblad said at the Jan. 27 council meeting, however, that they believe allowing the district to go on is a violation of the Arkansas Constitution.
“I would first like to remind members of council that they recently took an oath to uphold the laws of the sate constitution of Arkansas,” Foggo said. “Article 5, Section 1 of the Arkansas Constitution … The second power reserved by the people is the referendum. Any measure referred to the people by referendum petition shall remain in abeyance until such vote is taken. … Municipal league attorney states correctly that [the ordinance] must be held in abeyance.
“… The city attorney was correct. A special election wasn’t legal. All [the special meeting] did was create confusion and give a few people the chance to muddy the waters about their opinions and half truths. The state constitution, multiple state laws, free attorney general opinions along with the state Attorney General 2024 Initiatives and Referenda Handbook all state that referenda items must be held in abeyance.”
The council is breaking the law by not taking any action, Lindblad said.
“As citizens we are expected to follow laws; so are the city council members,” she said. “The oath you took said that you would uphold the Arkansas Constitution and all other laws all the way down to the municipal level. If you allow Ordinance 2357 to go into effect, you will be breaking the law.”
Lindblad referred to an opinion issued in 1997 by then-Arkansas Attorney General Winston Bryant.
In that opinion, Bryant wrote: “As a general matter, a referendum petition holds in abeyance a local ordinance, if the ordinance is not an emergency measure.”
“That means that if you don’t hold the entertainment district ordinance in abeyance until the vote, you are going to be breaking the law,” Lindblad said. “… The citizens of Eureka Springs don’t expect this of you. You know, you can’t just decide: ‘Well, I think I’ll just follow this Arkansas law, but I don’t think I’ll follow the others.’’
TREE ORDINANCE CHANGE REQUEST In an item added to the agenda, the council authorized Jacobi to make proposed revisions to the city’s tree ordinance after a recent decision by the Board of Zoning Adjustment to deny the removal of a tree located at 70 Clay Street, despite the recommendation of an arborist and the city’s code enforcement officer.
“I just wanted to bring this up because we spent a lot of time on the tree ordinance, and of course, there are going to be things that we miss or didn’t think about to take into account,” council member David Avanzino said. “We have a property in town that had put in a request to remove a tree. This tree is, the root system of the tree is under the road, and the tree is already starting to lean. It’s already buckling up the road. And when this tree falls — and it’s not an if, it’s a when — it will damage the house.
“Planning denied the application for them to cut this tree down [despite] the suggestion of a certified arborist. … We do have a certified arborist in town that’s been doing it for decades. He knows what he’s talking about. The request was denied and the way the ordinance is currently written, it dead ends there unless the property owner wants to take them to court. It doesn’t come to city council for appeal.
“So, what I’m asking is for us to revisit that ordinance so that things like this that are denied can come to appeal by the city council, just like almost every other commission.”
Jacobi agreed and said the correct procedure would be to for an appeal to go to city council.
“There is no point in going to court from BOZA,” Jacobi said, later adding, “The planning commission acts as BOZA and sometimes the two terms and duties get co-mingled. So if we need to clarify the ordinance we will do so.”
BOZA voted 3-2 at its Jan. 14 meeting to deny the tree removal.
Paul Sutherland, city building official and code enforcement officer, wrote in a letter to BOZA that the tree was “compromised by the root ball impacting the public street by uprooting, causing a large bump in the street and breakage of the asphalt.”
Sutherland wrote that the tree also posed a hazard to the structure of the house and recommended that it be removed.
Some BOZA commissioners, however, said they felt the tree was healthy and wasn’t in danger of damaging the home at the address.
OTHER ITEMS
Simon Wiley, the city’s director of public works, told council members that the Arkansas Natural Resources Commission recently approved the city’s request for funding for the wastewater sewer plant upgrades, awarding a $6.28 million bond.
“What I have for you is big news,” Wiley said. “… I don’t think we have the money yet, but it’s coming.”
Mayor Butch Berry said the bond is “basically a low-interest loan,” and added that any grant awarded to the city by the commission will be applied toward bond payments.
“But there’s no promise [in receiving a grant],” Wiley said.
Wiley also told council members that a recent meeting with state officials showed the city’s progress in remediating water loss because of leaks.
“So in 2022, when I took over the public works department … we were at 59.1 percent water loss,” Wiley said. “In 2023 we were at 55 percent for the entire year. And in 2024 we were at 41.4 percent. So, we’re making a lot of headway as far as water loss goes.”
Wiley said many other cities have issues with water loss as well.
“To get [water loss] to zero is virtually impossible, but I’m pretty happy with the 41 percent loss,” he said. “Holiday Island, and I don’t mean to throw another city under the bus, but they’re at 75 percent water loss. So, I think we’re doing pretty good.”
The council also deferred for 90 additional days an appeal of the revocation of legal non-conforming status of a bed and breakfast at 5 Ridgeway due to the owner of the property being hospitalized.
Approved on its second and third readings,by title only, was an ordinance amending the municipal code on peddlers and solicitors.
The ordinance will align the city with state law, which allows peddlers and solicitors, but will also put fees in place to help with regulation. The amendment and fees will not apply to individuals asking for donations or fundraising for groups such as schools, charities and nonprofit organizations.
The council also approved the 2025 budget which includes estimated revenues of $5,931,600 in the general fund, $1,086,000 in the street fund, $2,508,200 in water and sewer fund and $1,971,552 in the transit fund. Estimated expenditures include $5,905,521 in general fund, $988,800 in street fund $2,394,740 in water and sewer fund and $1,967,205 in the transit fund.
In other new business, the council approved a temporary entertainment district on Saturday, March 1, for areas of downtown for Mardi Gras activities. The district will run from the south edge of the courthouse on Main Street, continuing up Spring Street to Pendergrass Corner down the steps near Chelsea’s and ending at the public restrooms.
