CITY COUNCIL
REGULAR MEETING MONDAY JULY 24, 2006
PRESENT: Mayor Kathy Harrison, Aldermen Robert “Butch” Berry, Penny Carroll, Terry McClung, Rick Rojek, Lori Weaver, City Attorney Tim Weaver, Parks Director Bruce Levine and City Clerk-Treasurer Mary Jean Sell.
PLEDGE OF ALLEGIANCE:
Mayor Harrison led the Pledge of Allegiance to the Flag.
APPROVAL OF THE
AGENDA:
Mr. McClung moved to approve the agenda. Mr. Rojek seconded.
Mayor Harrison asked to move the
discussion of closing Spring St. for the Big Time Festival to the Department
and Commission reports.
She added a discussion of the
Greenlee/Sunday Market lawsuit as New Business Item #1.
All voted aye to approve the agenda
as amended. Motion passed 6/0/0
APPROVAL OF THE MINUTES: July 10, 2006
Mr. McClung moved to approve the minutes of the regular meeting of July 10. Ms. Blankenship seconded. All voted aye. Motion passed 6/0/0
COMMISSION,
COMMITTEE, AUTHORITY REPORTS AND VACANCIES:
Historic District Commission – 1 Position
CAPC – 1 Position – Mayor Harrison said she has received an opinion from the Municipal League that appointed members of city boards or commissions do not hold over/continue when their terms have expired. Therefore, there are actually two positions open on the CAPC. (Copy of opinion from Municipal League Attorney David Schoen attached to minutes.)
Planning Commission –1 Position – Mayor Harrison said a potential candidate for the Commission has withdrawn the application.
DEPARTMENT &
COMMISSION REPORTS:
CAPC, Fire/EMS, Cemetery, Planning, Parks, Financials
CAPC – Director Lynn Berry
was unable to attend the meeting. Festival Coordinator Sally Thackery asked
about the possibility of closing Spring St. from Main to Mountain St., except
for trolleys, from noon to 5 p.m. Saturday, Sept. 16, for the Big Time
Festival. She is particularly concerned about the possible number of fans
coming for the Little Feat concert Saturday afternoon and that the Basin Park
may not be big enough to hold all of them. She said she could have people “manning
the barricades” at Main and Mountain streets.
Mr. Weaver against closing the street to traffic, saying the Council
could be sued for blocking a thoroughfare.
City Council 7/24/06 1
Mr. McClung moved to continue the
discussion during the next regular meeting, Aug. 14. Ms. Blankenship
seconded.
Council members asked Ms. Thackery
to talk with merchants along Spring St. about closing the street for the
festival.
Mr. Weaver said he would talk with
the Planning Commission about amending existing ordinances to allow for
festival activities.
On the motion to continue the
discussion, all voted aye. Motion passed 6/0/0
Fire/EMS – Mayor Harrison
read the report aloud. She said testing of the soil at the construction site at
144 E. Van Buren is underway before construction can go forward.
Building – Mayor Harrison
read the Building Department report aloud.
Planning – Ms. Sell read
aloud the report from Chairman Leah Karnes.
Parks – Mr. Levine said
there will be a grand opening at noon Sunday, Aug. 6, for the new playground in
Harmon Park. The equipment cost $42,000 an approximately $8,000 to $10,000 in
labor was volunteered by Chuck Schmidt to prepare the area and put the
equipment together.
Work in the Community Building is 95 percent complete and he is
requesting an additional $2,900 added to the budget to finish the project. Ms.
Blankenship said the request is part of the mid-year budget adjustments to be
considered later in the meeting.
Parks and Recreation Commission Chairman Bill Featherstone asked about
the arrangement between Parks and Public Works Department for someone to
maintain the city’s flower garden areas. He said the Parks could not afford to
hire the additional personnel and he understood funds would be available from
Public Works.
Financials – Mayor Harrison
said the city sales tax revenues are up over last year at 4.26 percent. She
said she has gotten a notice from the Carroll County Assessor of property taxes
due on the Planer Hill Park and Ride Lot property at the intersection of
Highway 62 and 23/Main St. She will talk to the County Equalization Board about
the bill.
OLD BUSINESS:
1. Discussion of Ordinance 2019 raising Mayor’s salary to $12,000 Jan. 1, 2007, (3rd reading)
Ms. Blankenship moved to suspend the
rules and place Ordinance 2019 on its third reading by title only. Mr. Rojek
seconded. By roll call, four voted aye. Mr. Berry and Mr. McClung voted no.
Motion passed 4/2/0
Mayor Harrison read the title of Ordinance
2019 aloud.
Ms. Carroll moved to approve the
reading of Ordinance 2019 by title only.
Ms. Blankenship seconded.
After some discussion, Ms. Carroll
moved to amend Ordinance 2019 to raise the amount of the salary to $18,000 per
year. Mr. Rojek seconded. Ms. Blankenship, Mr. Rojek and Ms. Carroll voted aye.
Mr. Berry, Mr. McClung and Ms. Weaver voted no. Mayor Harrison voted aye.
Motion approved 4/3/0.
On the motion to approve Ordinance 2019 on its third reading as amended,
Ms. Blankenship, Mr. Rojek and Ms. Carroll voted aye. Mr. Berry, Mr. McClung
and Ms. Weaver voted no. Mayor Harrison voted aye. Motion approved 4/3/0.
2.
Discussion of Ordinance 2021, rezoning Carroll House
Apartments, 71
Pivot Rock Road, and Swiss Villa Apartments, 62 Pivot
Rock Road, from R-2 to R-3, Multiple Family. (2nd reading)
Ms. Blankenship moved to suspend the rules and place Ordinance 2021 on its second reading by title only. Mr. Berry seconded. By roll call, all voted aye. Motion passed 6/0/0
Mayor Harrison read the title of Ordinance 2021 aloud.
Ms. Blankenship moved to approve Ordinance 2021 on its second reading by title only. Mr. Rojek seconded. All voted aye. Motion passed 6/0/0
Mayor Harrison called for a short
break at 7:27 p.m. All voted aye. The meeting resumed at 7:37 p.m.
3. Discussion of Ordinance
2022, regarding mid-year budget adjustments. (2nd reading)
Ordinance 2022 was give its first reading during the regular meeting of
Monday, July 10, but not voted on. The vote was tabled to this meeting.
Mayor Harrison called for a vote. There were no ayes. All voted nay.
Motion failed 0/6/0
Ms. Blankenship moved to read Resolution 533 as the mid-year budget
adjustments. Mr. Rojek seconded.
Ms. Blankenship reviewed additional changes in the figures included in
the budget.
There was additional discussion about whether or not a resolution could
be used to amend an ordinance. Mr. Weaver says an ordinance should be used to
amend an ordinance, a resolution to amend a resolution, and that resolutions
should not be used to amend ordinances.
On the motion to read Resolution 533, all voted aye. Motion passed 6/0/0
Ms. Sell read Resolution 533 aloud.
4. Discussion of Ordinance
2023, regulating group tour franchises. (2nd reading)
Jerry Ballinger, owner of the Greater Eureka Springs Tour Co., said the
four franchise owners had met on Friday with Transit Director Lamont Richie and
had gone over the proposed changes in Ordinance 2023. He said they are in favor
of the changes as proposed.
Ms. Blankenship said the franchises should be transferable, should a
business be sold.
Joe Gunnels,
owner of Joe Gunnels Tours and Guide Service, said he would have preferred that
the franchise owners had been contacted before the changes were presented to
the Council. He supports the changes and the city/private enterprise
partnership in the ordinance. Mr.
McClung moved to suspend the rules and place Ordinance 2023 on its second
reading by title only. Mr. Rojek seconded. By roll call, all voted aye. Motion
passed 6/0/0
Mayor Harrison read the title of Ordinance 2023 aloud.
Mr. Berry moved to amend Ordinance 2023 to include “Franchise shall be
transferable” as the last sentence in the first paragraph of Sec. 54-182 Grant
of Authority. Ms. Carroll seconded. All voted aye. Motion passed 6/0/0
Mr. McClung moved to approve Ordinance 2023 on its second reading by
title only as amended. Mr. Rojek seconded. All voted aye. Motion passed 6/0/0
5. Discussion of sign
ordinance
Ms. Sell said the Planning Commission will hold a workshop at 5 p.m. Thursday, July 27,
City Council 7/24/06 3
on the proposed sign ordinance changes.
There was some discussion of a moratorium on enforcement of the existing sign ordinance.
Mr. Weaver said a moratorium would affect a sign ordinance case currently awaiting prosecution.
Mr. McClung suggested a vote of encouragement to the Planning Commission to get the sign ordinance work finished and to the Council as quickly as possible.
NEW BUSINESS:
1.
Discussion of
the Greenlee-Rogers/Sunday Market lawsuit.
Mr. Weaver advised the Council to answer the lawsuit as a whole, even
though
they are being sued
as individuals. He said they have the option to use him as the city’s attorney
or to see if Municipal League attorneys would be interested in taking the case.
Mr. McClung moved to submit the
paperwork to the Municipal League to see if their attorneys would take the
case. Ms. Blankenship seconded. All voted aye. Motion passed 6/0/0
CITY COUNCIL
COMMENTS:
Mr. McClung urged everyone to buy tickets to the
upcoming Bluegrass, Big Time and Ozark Folk Festivals.
Ms. Blankenship extended
her sympathies to Pat Fitzsimmons on the loss of the All Seasons Inn and
Daffodil Cottage to a fire Monday, July 17, and to those property owners who
lost trees or had damage during the microburst storm Thursday afternoon, July
20. She thanked the Eureka Springs Fire Department, Police Department, Parks
Department and volunteers who responded to both situations.
Mr. Rojek said the Fire
Department, Police Department and SWEPCO employees did a fabulous job in
restoring service and clearing the streets after the microburst storm.
MAYOR’S COMMENTS:
Mayor Harrison read aloud information about the “Your Town Citizens’
Institute on Rural Design” to be held here Aug. 13-15. The city is able to
sponsor the Institute with one of four National Endowment for the Arts (NEA)
grant awarded this year.
ADJOURNMENT:
Mr. Berry moved to adjourn at 8:55 p.m. Mr. Rojek seconded. All voted
aye. Motion passed 6/0/0
This is the signature page for the
minutes of the regular City Council meeting of Monday, July 24, 2006.
________________________________
Mayor
Kathy Harrison
________________________________
City Clerk-Treasurer
Mary Jean Sell
City Council 7/24/06 4
Attachment to regular Eureka Springs
City Council minutes of July 24, 2006
July 24, 2006
From Mayor Kathy
Harrison to Municipal League Attorney David Schoen:
The question for me: whether or not
an appointed official such as an A&P Commissioner has the right of
color to remain in the position, keeping other nominees from taking the gift
shop seat on our commission?
From Mr. Schoen
to Mayor Harrison:
In my opinion, the answer is “no.”
An appointee whose term has expired has no personal right to continue in that
office. AG Opinion 99-024 does recognize that they may serve as “de facto”
officials, which simply means that any votes or actions taken will not be held
invalid by the court. But serving as a “de facto” official means by definition
that one is not currently entitled to hold the office and is thus “removable.”
The term “color of right” in this
regard means that there is some potential legitimacy to staying in the office –
for example, “I was validly appointed to begin with an no one was appointed to
replace me when my term expired” – but it does no mean that one is lawfully
holding the office as a matter of law. In such a case it is understandable and
perhaps socially useful for the commissioner to continue to serve. It does not,
however, imply that the commissioner has a right to avoid replacement.
But lets assume for the sake of
argument that the constitutional “hold over” position does apply, and the terms
“elected and qualified” in the Constitution apply to the “appointment” of a
commissioner. In that case, a commissioner whose term had expired would
continue to legally hold office only until his or her “successor” is
appointed as set forth in the A&P statute.
City Council 7/24/06 5