Two members of the Eureka Springs City Council said they feel language in the city’s tree ordinance was meant to be interpreted a certain way when it comes to removing trees for the purpose of building on a lot.

Nonetheless, the ordinance says what it says according to other city officials, and the removal of 18 trees on a property where a home is planned to be built is legal and can proceed.

The council voted 3-2 at its Aug. 25 meeting to approve the appeal of an Aug. 12 Board of Zoning Adjustment decision that didn’t receive enough affirmative votes to OK the application from Susan Leahy to remove the trees at the property at 10 Charles Circle.

With council member Susane Gruning absent, mayor Butch Berry cast the deciding affirmative vote to give the appeal the needed four votes, joining council members David Avanzino, Rachael Moyer and Steve Holifield. Council members Terry McClung and Harry Meyer voted against the appeal.

The gist of the argument for approval came from the wording of the city’s tree ordinance.

Leahy told BOZA at the Aug. 12 meeting that she has a builder “who is very busy,” but plans to break ground this fall.

“Certainly hope to do it by spring,” Leahy said. “But, I hope to do it this fall if everything falls into place.”

Building inspector Paul Sutherland told council members that he met with Leahy on the property and an outline of the proposed home was laid out as required.

Building plans, however, were not submitted along with the tree removal application, something that BOZA initially questioned before being reminded by Cassie Dishman, the city’s director of planning, that they weren’t necessary for this step of the process.

In fact, no plans for the building would even come to BOZA if no zoning variance is requested. Instead, any plans would be directed to the city’s historic district commission, Dishman said.

“If she is in compliance, there’s nothing else we can do,” planning commissioner David Buttecali said at the Aug. 12 meeting.

Buttecali, Ferguson Stewart and Ann Tandy-Sallee voted in favor of the tree removal application at the meeting, but despite being told the application was in compliance, commissioner Scott Price voted against the request.

Commissioner Tom Buford, who has abstained from any votes involving tree removal applications for many months, continued his stance, and with only three affirmative votes, the application failed.

Leahy appealed to the council, and again, Dishman voiced her opinion that the application is in compliance with the ordinance. Sutherland, agreed.

“[Leahy] worked with Paul to mark the trees and prepare the application that went to the Board of Zoning Adjustment at our most recent meeting,” Dishman said. “It was denied on a vote of three yeas, one nay, and one abstention. We also had two absences with notice, so it failed due to a lack of the required quorum of yea votes.”

Meyer said he could understand why BOZA “voted no.”

“Of course, the ordinance states that they have to submit a plan and possibly even a construction date,” Meyer said. “A lot right next to me, about five, six years ago, a guy got a permit to cut 10 trees. He cut them down and left them laying and never built the first structure. So… left it for someone else to clean up. So, I think this is very appropriate to follow their guideline. I move that we deny this appeal.”

Dishman reminded the council what the ordinance actually says.

“The only plans for residential zones that are seen by the planning commission or the Board of Zoning Adjustment is when they’re asking for a zoning variance, which is not being asked for here,” Dishman said. “Further in that code, while it does not say that plans are required to be approved by the building inspector for the tree removal application to be approved, it says that they must be approved by the building inspector before a tree can be cut.

“So, this application can be approved and no tree can be cut until building plans are approved by the building inspector, and in this case, due to its location, by the historic district commission.”

Sutherland said Leahy showed him preliminary drawings of the project.

“Keep in mind, her goal is to, this process, she’s wanting to get the house going and this is just her first step,” Sutherland said. “That’s the reason why she came to us.”

Avanzino clarified the process with Dishman.

“Cassie, as you said, we can approve her appeal because the way the ordinance is written, she does not need a building plan under after this portion is done?” he asked.

“Correct, the ordinance states that construction plans shall be submitted to and approved by the building inspector before any tree is removed pursuant to a tree removal permit,” Dishman responded.

McClung, however, said the intent of the ordinance was to submit plans along with the removal application.

“The position of building inspector, the commissioners have all changed many times over the years,” McClung said. “When this was all written, the intention was, and has been in the past, that those plans are submitted to the planning commission as well, that they see that and that the drawings are complete. You can go back in the planning commission files, I just about bet you 20 to nothing that you’re going to find that, you know, six years ago, eight years ago, four years ago even probably, that they were there and that for any new build that that’s the way it was done. So it’s just subject to interpretation, and I think that the plans are that it does call for the plans, building plans to be submitted to the planning commission.”

In the end, Avanzino, Holifield and Moyer — along with Berry — sided with Dishman’s interpretation of the ordinance and approved the appeal.

ABSTENTION OBJECTIONS During the discussion about the tree removal appeal, Holifield brought up the continual abstentions by Buford when it comes to tree-related votes.

He said he watched the Aug. 12 meeting and that it was a “perfect storm.”

“Two people weren’t there, one person recused himself, and then just four people were left …,” Holifield said. “…. But also I’ve noticed in several of the last meetings, the same person recuses himself on every tree cut permit. Can you tell me why a commissioner is refusing to vote on this issue?.”

“I do not know why that commissioner is continuously abstaining,” Dishman responded. “You would have to speak to that commissioner yourself.”

Holifield asked city attorney Heather Owens if continuing to abstain for no reason was an ethics violation.

“Is that a violation of the Code of Ethics if a person just decides not to vote on certain issues or ordinances on the commission?” Holifield asked. “We have a commissioner that says he’s not going to vote on any permit on a tree cut. Is that a violation of the Code of Ethics? Can we remove that commissioner?”

Owens said the council does have the authority to remove any commissioner.

“We’ve been told we have to have due cause,” Holifield said. “Is this due cause?”

Owens said she would look into the city’s Code of Ethics.

“I’m not suggesting that tonight, but this is a consideration we have again, we have commissioners and they’re refusing to do something because they don’t agree with city code, then we have a problem,” Holifield said. “This was a perfect storm, and if this person had voted one way or another we might not even be discussing this tonight.”

McClung said he was not clear what Holifield was referring to.

“Is he just voting no, or is he abstaining?” Mc-Clung said.

“He’s abstaining,” Holifield replied.

“That’s a no,” Mc-Clung said. “I don’t like that, I’m sorry.”

Berry agreed. “Basically there’s a no vote, but he should vote,” the mayor said. “That’s my opinion.”

Owens said after some research at the table, that the council could remove a commissioner “on recommendation from the mayor and majority of the council if you feel it’s in the best interest of the city.”

“That is the standard in your ordinance,” Owens said.

BATHHOUSE REQUEST The council unanimously approved the city parks department applying for a $200,000 matching grant to help fund the construction of a new bathhouse at Lake Leatherwood City Park.

If awarded the grant, parks would be responsible for $200,000 with the Arkansas Department of Parks, Heritage and Tourism funding the remaining $200,000.

The department would possibly look into a loan to help with the initial $400,000 cost of the project, until the city receives the matching part of the grant, parks director Sam Dudley told the council.

A separate project would then renovate the current bathhouse, Dudley said.

OTHER ITEMS

The council approve mid-year budget revisions, which include a total increase of the original budget from $5,931,600 to $6,089,700.

The council also approved resolutions setting public hearings for vacating a section of Alpena Avenue, vacating a section of Lone Street and vacating a section of an unnamed alley.

The council also voted unanimously to approve Peter Graham to rejoin the historic district commission and voted 4-1 for Coltan Scrivner’s appointment to the CAPC. Meyer cast the lone dissenting vote.