Council approves two CUP appeals


At Monday evening’s meeting, Eureka Springs City Council twice voted to approve appeals for applications for Conditional Use permits that the Planning Commission had denied.

At the beginning of the discussion, alderman Tom Buford excused himself from the room because he had been a part of discussions at Planning that brought about the appeals before council.

Damon Henke was applying for a CUP for a three-unit Bed & Breakfast at 19 Thomas Drive. He said the property is right behind the Rockin’ Pig and abuts the Village at Pine Mountain property. He intends for someone to be on site when renters are around, and nothing else changes about activities at his house except someone spending the night. “And,” he added, “We get to choose who stays with us.”

He said one issue for some Planning commissioners was a stipulation in the covenants for his neighborhood that the lots were reserved for residential uses only. He stated there are legal opinions that say short-term rentals are still considered residential. Therefore, he maintained he meets the covenant.

He also pointed out no one spoke in opposition at the Planning meetings.

Alderman Melissa Greene told Henke he had the right to apply for a CUP in the R-2 zone and be granted one if he met the requirements. She asked City Attorney Tim Weaver’s opinion regarding the covenants, and Weaver replied council would not be granting Henke the right to violate the covenant, and the city cannot enforce covenants. His neighbors would be the ones to initiate action in that regard.

Greene added it appeared to her Henke met the requirements.

Alderman Mickey Schneider, however, was uncomfortable with the fact Henke had appeared at three Planning meetings without getting approved. She maintained aldermen did not have “the knowledge, background or right to make their decision for them.”

Alderman Bob Thomas pointed out Planning did make a decision, and the application failed. He said folks in town have feelings for and against CUPs, but speculated, “Everyone would want an applicant to be treated objectively, fairly, and according to Code as Melissa stated, and I don’t think you were at any of the three meetings.”

Alderman Terry McClung said covenants usually have sunset dates, and Henke said one for his property was set in 1968 for 15 years with 10-year renewals. McClung insisted the city has a responsibility if the covenants are in force, but Mayor Butch Berry reiterated that Municipal League attorneys had stated covenants are agreements among the homeowners and the city is not involved.

Vote to approve the appeal was 3-1, Schneider voting No. Berry voted Yes, so the appeal was approved 4-1.

The other appeal

Shaman Hill’s application for a CUP for one unit of tourist lodging at 1 Richard Circle had also been denied by Planning. Green told Hill that Planning Chair Ann Sallee had been concerned that not all commissioners had up-to-date Code Books, and that was one reason she chose not to vote.

Thomas commented his review of the Planning minutes indicated there had been no discussion about Hill’s application, “just an immediate motion to vote.” He noted three commissioners voted to approve the application, and the Chair did not vote because of an incomplete Code Book. “They were unfair to you,” Thomas stated. He said another option would have been to defer the vote until all commissioners had all the information.

Again Schneider said she did not want to go against a decision made by Planning. Greene agreed with her sentiment but said the vote had gone against Hill because of incomplete Code Books, not for personal feelings or a flawed application, and she was convinced Hill had met the requirements.

McClung moved to approve the appeal, and the vote was on his motion was 3-0-1, Schneider voting Present. Again Berry cast the fourth and deciding vote.