Codes should be equitably enforced

When one is elected to public office, or hired by public officials and paid with taxpayers’ money, to whom is one accountable? What should motivate one’s decisions and actions in the public sphere?

Every elected official in Pea Ridge lives inside the city limits. There will be issues before City Council or Planning Commission which may personally affect public official’s personal lives.

Recently, there has been some contention in a couple of public meetings in Pea Ridge. In fact, for the first time in years, the gavel was sounded at a Pea Ridge City Council meeting. That rarely, rarely happens in Pea Ridge.

Contention in and of itself is not bad. There are more then 5,000 people in this community and all have different opinions. Working through the contention to find the best solution for the city is the task with which the City Council and Planning Commission members are faced. Each has a different, but needed, role. Few people attend both groups’ meetings.

For the most part, members of both groups are dedicated and selfless in serving the community and spend hours of their time studying the issues before making a decision. Although both groups are paid for attending meetings, they also spend personal time either listening to constituents or reading pertinent information to make an informed decision.

Recently, local businessman Jim Erwin was denied a request for a conditional-use permit for property adjacent to his wrecker property lot on Slack Street that has a conditional-use permit. That permit was to be reconsidered by the planners as part of the annual process for conditional-use permits.

After Erwin was denied, City Council member Steve Guthrie, who spoke at the public hearing in support of Erwin, told Erwin to appeal to the City Council, then added that he could get him two or three votes.

The Planning Commission has a quasi-judicial role in ruling on the request for the conditional-use permit. There are city ordinances and codes that set the guidelines. The decisions are not made arbitrarily.

The City Council is legislative and makes ordinances and resolutions used to govern the city. It also provides a place to which a resident can appeal a Planning Commission decision. It is the city’s ordinance governing planning on which the planners base their decisions after hearing all the facts.

Guthrie said he did speak on Erwin’s behalf. He said he did recuse on one of three votes concerning the appeal after hearing a concern mentioned by businessman John Tjarks at the Council meeting.

“I did (recuse) on that vote, but I won’t do it again because I get paid to make those decisions,” Guthrie said. “I have as much to gain or lose as anybody. I do rent from the strip center (a retail building on the south side of Slack Street across the street from Erwin’s lot).

“I personally believe that there is no better place for Erwin to have a wrecker service than in that two- or three-block area. There are two wrecker services, two gas stations … a tire repair shop, two banks — five of them are auto related. Where is there better for Erwin to expand his business than where we have all that auto-related service?” Guthrie said.

Council member Ray Easley spoke Tuesday at City Council from the dais in favor of Erwin, saying Erwin spent a great deal of money in town. Does spending money entitle one to anything they request? Or are they still to be governed by the city’s ordinances?

A brief history of the city’s official interaction with Erwin includes:

• 8/6/13 Conditional-use permit denied for 750 Slack St.

• 5/11/16 Planning Commissioner Zach Hoyt asked city building official Tony Townsend to voice concerns of Planning Commission to Erwin about use of the property after denial.

• 2/1/17 Planning Commission agenda published advertising public hearing for conditional-use request for 750 Slack St. and show-cause hearing on conditional use for 724 Slack St.

• 2/7/17 Planning Commission denied conditional use permit for 750 Slack St. after listening to numerous residents speak at public hearing.

• 2/21/17 Erwin appeals to City Council about denial; Council sends issue back to Planning Commission for vote of all members (two were absent at Feb. 7 meeting, but there was a quorum and the vote was legal).

••• “In a democratic society, open, fair decision making is critical to whether the public trusts what the government is doing,” wrote Ted Shekell, American Institute of Certified Planners. “In planning circles, ex parte, or one-sided communications, are usually problematic, either legally, ethically, or both, particularly when it involves a quasi-judicial action such as is often the case with variances or special-use permits.”

Shekell continued: “One of the most important roles of the planning commissioner is to be an objective, fairminded representative of the community. As those in the arena of city planning know all too well, land-use issues frequently bring out passionate opinions from all sides, with the voice of reason and balance often coming from the planning commission.”

In an article titled “Ethical Hazards of Attending Other Board or Commission Meetings,” attorney Michael Dean from California addressed similar issues: “There are risks attendant upon Council members attending meetings as liaisons and participating actively in the meetings from the dais. These risks include both the legal risk of bias, which could give rise to disqualification at the Council level or even to a due-process claim, and the risk of stifling the formulation of an independent recommendation from the board or commission. These risks are the most serious in the case of a board or commission acting in a quasi-judicial capacity.”

••• There are more issues at stake here than just whether Erwin gets a conditional-use permit. A question is whether the Planning Commission members acted in a fair and unbiased manner. Did the members make a decision based on the merits of the case?

Did the City Council members make their decisions based on the merits of the case? Do they know the city’s guidelines of zoning and conditional-use permits? Do any of them have a bias toward or against Erwin?

Residents and business owners in Pea Ridge should be confident that their investment, regardless of how large or small, is as valuable to the city as any other and that all will be equitably held accountable to the city’s codes.