Variance denied for 46 Hillside

Thursday, September 30, 2004

Requests for a variance and one conditional use permit (CUPs) for the property at 46 Hillside were turned down Thursday evening by the Eureka Springs Board of Zoning Adjustment/Planning Commission (BOZA) in spite of a lengthy public hearing and pleas "to do the right thing."

The CUP request to continue the facility as a wedding establishment was approved.

The applications were filed by Susan Misavage, a prospective buyer for the property known as Angel at Rose Hall.

The request for the variance was to a part of the city's Municipal Code which prohibits the operation of a business in a residential zone within 200 feet of an existing business of the same type.

The property for Angel at Rose Hall joins the property for the Inn at Rose Hall, which has conditional use permits as a wedding establishment and as a bed and breakfast.

Angel at Rose Hall currently has a CUP to operate as a wedding establishment.

Both properties were built by Ron and Sandy Latimer. Sandy Latimer is now listed as the sole owner of Angel at Rose Hall.

In late 1998 or early 1999, Latimer requested a conditional use permit to operate a bed and breakfast at 46 Hillside before the structure was built.

BOZA denied that request, based on neighboring property owners' opposition and a "lack of need" for another such facility, a provided by the Municipal Code.

Sandy Latimer applied for another CUP in January of 2001 but there were not enough board members present to vote on the application following the public hearing.

Later in the month, the BOZA split 3 to 3 on the application with former Chairman Robert "Butch" Berry recusing himself from voting because he designed the house.

Berry said Thursday he had been hired by the Latimers to design a single-family residence.

Board member Eric Scheunemann asked him if it wasn't obvious the structure would be used for something besides a single-family residence.

"I didn't ask," Berry said. "It was not my job to ask about the uses of the property. My job was to give them what they wanted and that was a single family residence."

He told the group "I probably would have passed it (to allow the B&B CUP) when I was on the commission."

The Latimers have sued the City of Eureka Springs twice over not being given CUPs for bed and breakfast units, although there is a CUP for a wedding establishment.

The third suit was filed locally in district court in 2001 then taken to federal court with constitutional questions. The federal court returned it to district court for action more than two years ago. The case is still pending.

Attorneys Matt Bishop of Eureka Springs and Stephen Giles of Little Rock were on hand last week to represent Misavage, although she made her own brief statement to the BOZA.

Chairman Dan Bennett asked the attorneys and persons in the audience not to refer to the law suits or previous BOZA actions, to try to speak only to the application.

Giles urged the board several times to "forget what happened in the past and just approve this variance so Ms. Misavage can get on with buying the property."

He told the members to "use their common sense. This building is a bed and breakfast. The city has been accepting her permit fees and CAPC (City Advertising and Promotion Commission) taxes. The city recognizes what Ms. Latimer has been doing, whether she had a CUP or not."

Giles maintained that renting rooms to couples who were married in the inn was "a natural extension of the wedding business."

It was more than an hour later in the public hearing when Giles announced Latimer would drop the current law suit if the BOZA would issue the CUP to Misavage.

Of the 15 citizens who spoke to the variance, 12 were in favor of granting it and three were against.

Bennett read 11 letters from citizens. Eight were opposed to the variance and three supported it.

When the vote to approve the variance was taken, members Terry McClung, John Brammer and Leah Karnes voted in favor. Ken Foggo, Jan Grinnell and Scheunemann voted against.

Chairman Dan Bennett declined to vote and declared the motion failed.

A citizen in the audience wanted to know why he didn't vote and he said "The chairman doesn't vote, except to vote in favor to break a tie."

McClung challenged that opinion, saying he thought the Municipal Code called for all members of the board to be voting members.

Bennett then said he would vote no, making the vote 4 to 3 against the variance.

The board members adjourned to meet as the Planning Commission. They did not plan to go ahead with the public hearings for the CUP applications for the wedding establishment and the bed and breakfast units since the variance application had failed.

Bishop and Giles insisted they have the public hearings and vote on each application.

The bed and breakfast application was denied as the vote split 3 to 3 and Bennett did not vote.

The wedding establishment CUP was approved 5 to 1 as a continuing use.

In other business, the Planning Commission continued the public hearing on the proposed sign ordinance to the regular meeting of Oct. 14

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