The Eureka Springs Board of Zoning Adjustment says a vote to revoke a Conditional Use Permit of a tourist lodging location last month was invalid because it didn’t receive enough votes from commissioners.
The commission voted April 11 to revoke the permit at 17 Breezy Point after the property was reported to have multiple violations.
However, the commission’s vote was 3-2 with chair Susan Harman not voting.
According to the city’s municipal code, a majority of commissioners — or four votes — is needed for an approval.
Kyle Palmer, Eureka Springs’ director of planning and community development, told commissioners at their most recent meeting on Tuesday, May 9, that the code requires all commissions, councils and board to have a majority vote to pass a motion.
“It is required regardless of how many commissioners are present,” Palmer said. “Basically, it will always require four votes to pass, so that will be reflected in the minutes for last month’s meeting.
“The vote that we took did not carry four votes, so it did not pass and that will be reflected in the minutes.”
Harman told commissioners that she was responsible for the mistake.
“I have to apologize because I should have known this,” she said. “I did not. Anyway, it’s really my fault because I didn’t vote. Just going forward, I know we have to have four votes to pass something.”
The Eureka Springs Times-Echo emailed Palmer on April 13 inquiring about the 3-2 approval two days earlier. At the time, Palmer said he felt the vote was legal and had forwarded the newspaper’s question to city attorney Forrest Jacobi.
“Great question,” Palmer wrote in an email response to the Times-Echo about whether three votes was enough to revoke the permit. “I had to do some looking. I am going to copy the city attorney just in case he needs to correct me.”
Palmer explained that he felt four votes were needed only in certain situations by the board of zoning adjustment and planning commission such as an application receiving opposition from more than 20 percent of adjacent property owners.
“Those are the instances that I can find where 4 votes are required,” Palmer wrote.
The April 11 vote to revoke the permit came after a lengthy discussion between commissioners and attorney Matt Bishop, who was representing property owner Cecilia Athey.
It was reported to commissioners at the meeting that the property was in non-compliance of building code requirements, was being used as a long-term rental and was being advertised as a wedding and event venue, including offering food service, all without approval from the planning commission.
The commission was also told that a lodging unit must also have a Certificate of Occupancy and there is not one on file for that location.
“This is a property that was permitted for a one-unit tourist lodging in a R-2 zone in June 2021,” Harman said during the April 11 meeting. “This is a tourist lodging so it’s not a B&B.
“There was an administrative error at City Hall and this was changed from a one-unit to a two-unit and that was addressed with the property owner.”
Harman said another error allowed the property to receive a business license to be a wedding and event venue, something that isn’t allowed on a property zoned R-2. The city has since notified Athey of the error and is in the process of refunding the license fee.
Bishop told the commission that Athey did obtain a business license but has not used the location for any events.
“[Athey] put the cart before the horse,” Bishop said at the time. “She certainly intended to be here for a CUP. The city took her money and issued the license that she has not used. She has not leased the property for weddings, an event center or sold food. She has simply gotten a license. So, there is no actual violation … no condition in there says you can’t get a business license.”
Harman responded that the commission had information that the property has been advertised via platforms including visitor guides and the Eureka Springs Chamber of Commerce website as a wedding venue and a location that has a meeting room of “1,200 square feet.”
“It is listed … it says ‘hello and welcome to our house. We look forward to hosting your wedding reception in our quaint 1940s three-bedroom home on four acres just five minutes from historic downtown,’ ” she said. “The advertising is indicating she intends to …” Bishop responded: “Merely advertising. If she made a poor decision to advertise something she couldn’t do, that’s on her. It’s not a violation of her conditional use permit to put out advertising any more than it’s a violation if someone has a business in town and they get a judgment against them for fraud.”
“The conditional use permit is for one-unit tourist lodging,” Harman replied. “It is not for weddings as she has advertised and it’s not for events.”
Bishop also told commissioners that the unit was indeed being used as a one-unit tourist lodging and contracting troubles are what led to issues with the building inspector.
“Nothing in the CUP regulations say that a building code violation is grounds for revocation,” he said.
Commissioners did not mention whether the issue of the property’s permit would be addressed again in the future.
OTHER BUSINESS
In other business at the May 9 meeting, commissioners held a workshop where members of Mayor Butch Berry’s Task Force on Economic Development were invited to present data and research on housing in Eureka Springs.
Berry, Sandy Martin and Kent Turner presented and answered questions from the commissioners.
Commissioners voted to request the city council update the municipal code to define a short-term rental unit and also voted to end discussion regarding short-term and longterm rental inspections due to city council taking up the issue at recent meetings.
The commission also voted to look into updating the municipal code to define the process of revoking a legal non-conforming status and how the 50 percent damage clause is defined in section 14.08.05.
