EDITORIAL
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Public Records Act Ignored (published Dec 1, 2007)

Eagleville Mayor Nolan Barham chose to ignore the full provisions of the Tennessee Public Records Act last week in what could be characterized as an attempt to keep the public from knowing who has applied for the city recorder position.

Under the act, personnel records, including employment applications, clearly fall under the definition of public record and are to be open to the public, with the exception of such personal information as Social Security numbers, bank information and unpublished phone numbers.

On behalf of the Eagleville Times, Phil Williams presented the mayor with a written request for a copy of all the applications and/or resumes at the Nov. 15 council meeting.

"No problem," the mayor said, admitting the applications were public information.

"You have every right to these," Barham said. But what he then did out of the public eye is another story.

The city has established an up to five-day period to get the information to the public even if the information is readily available, so Williams waited five days to call Barham about the applications.

When he reached Barham, the mayor said he was not sure he could give Williams the information and that he had been talking with the city lawyer daily about the matter. And furthermore, the five days really means five business days, the mayor said, which with the holidays and weekends extended the five-day period by the mayor’s calculations from Nov. 15 to Nov. 27.

Williams finally got the copies of about 17 resumes on Nov. 27 but found that two of them did not have names on them and another one had a name scribbled on it but the name was illegible. Also, none of the resumes had mailing addresses, which are important for identifying the person and what city he or she lives in.

Williams repeatedly tried to call the mayor to no avail about the missing information and about the mayor’s promise to have copies of all additional applicants’ paperwork ready for him at city hall on Friday afternoon. He even faxed the mayor a letter about the missing information and the mayor’s promise.

Friday afternoon came and went but no mayor was to be found at city hall even though he was seen in town that afternoon.

On Saturday morning, Williams caught the mayor at city hall but the mayor told him it would be at least Monday before the copies would be ready for him. That delay automatically looks suspicious because it means this newspaper will have already gone to press by then.

Admittedly, it is hard running a city without any employees but there was ample time for fulfilling the Public Records Act request. It would have been much easier and less stressful to have just made the copies than to try to avoid the issue unless it was to your advantage to keep the information from public view.

If the mayor was short on time, he could have given the request to Vice Mayor Ronnie Hill to fulfill, who lives and works near city hall. Hill has the authority to stand in for the mayor when he is absent, so he certainly could have handled the Public Records Act request.

Public view of who has applied for such an important position as city recorder is vital in trying to determine if all applicants are treated fairly and that the job will not be filled by some friend or political ally. Also, it could help avoid accusations against the council that the hiring was not done all above board.

The selection process the council has chosen for hiring the city recorder is already somewhat troublesome, in part, because the whole slate of candidates except one will be totally out of public view.

It will probably also be out of view of the other council members unless they request to see the applications.

The city recorder selection process will allow the mayor and two non-council members to chose who they think is the one best candidate out of all the applicants. That lone applicant will then be presented to council members for their consideration.

Since the mayor normally can count on a majority of the votes, he already has undue influence in selecting the city recorder and frankly in most all other matters that come before the council.

Wise to be wary (published Sept 15, 2007)

The leaders of a citizens group opposed to putting a concrete plant next to the city park are wise to be wary of the possibility that the Eagleville Planning Commission might try to change the zoning ordinance to allow the concrete plant to be built on the site.

Mayor Nolan Barham, who is also a planning commission member, dominates the planning commission meetings even though he is not the chairman of the group. And with the help of City Planner Bo Logan’s advice, Barham could push through amendments that would do away with two restrictions that keep the plant from locating next to the park on a 12-acre site known as the Poe property.

These restrictions say that such an industry cannot locate next to a city facility where people gather and that such an industry cannot locate in a 100-year floodplain or wetland.

The planning commission would need the city council’s approval to change the zoning ordinance but looking at past performances Barham can count on at least three city councilmen – Terry Zumbro, Harold Vincion and David Rigsby – to vote with him. Then Barham can vote to break the tie, and the vote count becomes 4 to 3 for whatever Barham and the voting block want.

Barham, the planning commission members and the city planner have mishandled the zoning request from the start either because they lack the knowledge of or are willing to ignore the provisions of the city’s zoning ordinance.

When caught disregarding the zoning ordinance, Barham said that the city’s zoning ordinance is new, and he suggested the planning commission is now in a "transition period" in figuring out the rules and regulations. One would hardly call the zoning ordinance new, though, because the city adopted it on April 27, 2006, which is more than 16 months ago, and the planning commission had been working on hammering out the ordinance for at least a year before it was adopted.

The bungling of the proposed rezoning of the Poe property started at the very beginning of the process when the land owner or his "authorized agent" was supposed to file an application form requesting the rezoning. This rezoning request form serves to initiate the process.

Circumstances surrounding that rezoning request application are a mystery. Citizens asked about the existence of the rezoning application at city hall and at the last planning commission meeting.

The city recorder, who is the keeper of the records, said she had no knowledge of the application. The mayor said he thought one existed somewhere, and the city planner said such paperwork is handled administratively, meaning city hall was the one to take the request and not him.

The Eagleville Times subsequently filed an open records request for copies of all the documents that were presented concerning the proposed rezoning. According to a resolution, the city has up to five days to fulfill a records request. On the fifth day the newspaper was given a copy of a rezoning request form requesting the Poe property be rezoned from I-1 (light industrial) to I-2 (heavy industrial) to allow Metro Ready Mix Concrete to "possibly construct and operate a ready mix concrete batch plant."

The rezoning request form was signed by Steve Herron, president of Metro Ready Mix Concrete, and was dated Aug. 20, 2007, the date of a special called meeting when the commission voted to recommend the rezoning to the city council.

According to print at the bottom of the request form, the document the newspaper received had been faxed from Metro Ready Mix at 8 a.m. on Sept. 14, the day the information was due to the newspaper.

Regardless of when the city initially received the request form, the form did not follow the zoning ordinance’s requirements. The form should list the name and address of the owners of the Poe property and the written certification of the authorized agent. It included neither.

The request was also to be accompanied by a listing of the names and addresses of adjacent property owners, including those across the highway. None of these were listed.

Also, the applicant for the rezoning was to pay a fee with the application as set out in the "Eagleville Rezoning Fee Schedule" and was to pay a fee for a notification sign to be placed on the Poe property "14 days prior to consideration of the planning commission meeting." The sign, which is to notify any interested resident about the potential rezoning, was never placed on the site.

And, according to the city recorder, the city does not have a rezoning fee schedule so no rezoning fees were charged.

The zoning ordinance requires the application for rezoning to also be accompanied by a preliminary development plan, information on operational data and environmental assessments. It appears this information was not submitted to the city.

From the audiotape of the Aug. 20 planning commission meeting, it sounded like the real estate consultant for the Poe property or the Metro Ready Mix representative may have submitted some type of preliminary plat but the newspaper could never get a copy of what was submitted. Instead the city gave the Eagleville Times a copy of a 1985 survey of the Poe property and a 100-year flood plain map. The map had been left by a privately-hired attorney who is looking into the rezoning issue.

The operational data was to include a detailed description of the operation, the average number of vehicles expected to enter and leave the plant and types of federal and state permits required to operate the concrete plant. The environmental assessments were to include possible effects on ground water, air quality and surface water and geological data as prepared by a state-licensed geologist.

The rezoning process continued, even though the proper sign had not been placed on the property, when Barham called a special meeting of the planning commission on Aug. 20, rather than waiting two weeks until the regularly scheduled meeting when citizens would normally expect a meeting. Barham said either Ready Mix or the real estate consultant asked that the meeting be held then. He said in a later interview that the city tries to accommodate any applicant’s request.

The planning commission can call a special meeting but calling one on such an important issue is not a wise thing, especially the way this rezoning request was handled. The called meeting gives the appearance that someone wanted to rush this rezoning process into the works before the public or all of the city council members even knew what was going on, which is what happened.

Also, the planning commission members convened as a Board of Zoning Appeals (BZA) at the Aug. 20 meeting to vote on a special exception to allow a concrete plant in the I-2 zone because the ordinance does not specifically mention a concrete plant.

The ordinance does allow a concrete type plant as a special exception. But the planning commission, however, violated the BZA rules and regulations because the zoning ordinance requires that an application be made to the BZA for any special exception request. No application was made.

Also, the zoning ordinance says that a public hearing is required before the BZA can take action on any case but the ordinance is not entirely clear on whether "special exception" falls within the "any case" category. Anyway, a public hearing was not held before the BZA action.

The planning commission went ahead and recommended to city council at the Aug. 23 council meeting that the Poe property be rezoned even though they had not received the preliminary development plan information, the operational data and the environmental assessment that were required before the item went before the city council.

In fact, Councilman Harold Vincion, who also serves as secretary to the planning commission, gave minimal information to the city council before the council was asked to vote on the recommendation. Councilman Ronnie Hill had to press Vincion in order to just learn the name of the company looking at locating on the Poe property.

The council went ahead and approved the planning commission’s recommendation to rezone the Poe property on a 4 to 1 vote on the first of three votes even though the motion they voted on was not restated for clarity nor was there any ordinance read that would state what the council was voting on.

Barham will argue that all he wanted to do was get the rezoning issue before the city council for a vote so that the company could proceed on with its final development plan, which requires a final site plan prepared by a state licensed engineer. However, all the other information should have been gathered before the matter went to the city council.

The planning commission voted to rescind their rezoning recommendation to the council at the Sept. 6 planning commission meeting after a privately-hired lawyer visited city hall asking questions about the rezoning process. It is uncertain what action the city council will have to take now to fix its part in the mess.

Planning commission members must get their act together to make sure they are following the zoning ordinance, which is a binding document for the city, and that they are following all other rules and regulations associated with rezoning requests. If the commission doesn’t follow the zoning ordinance, any action it takes is subject to legal challenge, and everyone knows the city does not have the money to fight a legal challenge.

Plus city councilmen must become more informed on the zoning ordinance and any other rules guiding the planning commission so the councilmen can make sure the proper procedures have been followed before they vote on a proposal. Councilmen also need to make sure they have a chance to review ahead of time the documents submitted by an applicant so they know for sure what they are being asked to approve.

If the planning commission springs another such recommendation on the council without all the council members knowing what is going on, the council members should ask to delay the vote. If the voting block agrees to move forward anyway, then the other councilmen should vote against the measure and make sure their comments are included in the official city council minutes.

The motivation for trying to push the rezoning for a concrete plant through appears to be the desire for a new business to bring in much needed revenue into the city. While that motive is a valid one, the planning commission must not disregard the rules and regulations to reach a desired end.

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