Should you mistakenly believe the enduring flap over whether to rebuild or destroy the leaky failing dam that restrains Little Sugar Creek to form Lake Bella Vista is over, I assure you it's only entering its jurisprudence phase.
The opponents of spending some $3.5 million in tax dollars to rebuild the dam are seeking contributions for legal action to block the city from moving forward with its determination to restore the dam.
Greg Van Horn leads the activist group Friends of Little Sugar Creek. He's argued for many months that Bentonville's residents would be better served by removing the aged dam and allowing the clear flowing stream to again meander through the community, providing other avenues for recreation.
But Bentonville's mayor and aldermen have bought into the plan of rebuilding with FEMA and other public financial assistance. Their acceptance seems based in large measure on a suspect conveyance agreement that supposedly says the city is legally obligated to rebuild the dam if necessary. So the dam seems destined for a courtroom and perhaps to voters.
It doesn't seem to matter that public sentiment has favored removing the dam while saving lots of public money in the process.
Van Horn recently told me he still believes it's "unconscionable to rebuild a dam that creates a shallow, small, warm reservoir where the only purpose is our right to recreate on flat water, provided that recreation doesn't include swimming or wading.
"People are starting to contribute to our efforts. I hope our fund continues to grow and we can afford a good environmental lawyer and hopefully get the question on the ballot. We aren't able to find a non-profit environmental firm to help. Justice for this issue won't be free."
I voiced my opinion last year that Little Sugar Creek should be restored to its natural state while saving money and creating opportunities for public enjoyment along its banks.
Van Horn recently told his membership how raising funds for a legal battle is the only logical recourse at this point. And he says the 2005 conveyance agreement that turned up suddenly, and which some aldermen gave as a reason for voting to rebuild the dam, is legally invalid.
"We tried diplomacy, letter writing, meetings, council meetings and a host of other ways to persuade the City of Bentonville not to rebuild the failed dam," he wrote. "Despite the efforts of so many people combined with overwhelming evidence showing that the dam is poorly located to accomplish its only intended purpose of recreation, the Bentonville mayor refuses to consider the less-expensive, more environmentally friendly option."
Van Horn said during the public comment period for the dam project's Environmental Assessment (drafted by the same company to which the city awarded a $500,000 dam planning and design contract), 81 percent favored restoring the stream. "While the public understands the benefits of restoring the flow of a natural stream through the heart of our community, the mayor of Bentonville is unrelenting in his desire to rebuild this bad dam."
This community's disagreement reminds me of polarizing and passionate cage matches that often arise across our state. A local government decides one thing even though a majority of the populace might feel differently but is allowed relatively little, if any, say or sway in the matter.
Van Horn called the struggle "an example of the city's agenda-laden pursuit of dam building, rather than hosting an open forum for debate about the merits of removing or keeping the dam. At the only council meeting to discuss this issue, the Bentonville city attorney chose to introduce a previously unpublicized conveyance agreement, which they said claimed the city had a legal obligation to rebuild this dam.
"By introducing the agreement before we [or the public] had a chance to review it, debate was squelched and discussions about removing the dam were effectively made moot," he continued. "The provisions in this conveyance document was reported to be the primary reason why several council members gave for voting in favor of funding the dam design contract with CP&Y Engineering."
The elephant in the poured concrete of this dam issue is that the conveyance agreement as prepared apparently has been invalid and unenforceable from the beginning, according to Bentonville attorney Randall Wakefield, who reviewed it in January.
"Furthermore, in reviewing meeting minutes from the time of the conveyance agreement, no record of a vote by the council to approve this agreement could be found," Van Horn said. "Cities are required to get council approval for all real-estate purchases, conveyances and lease agreements. Maybe that's why the city clerk never notarized or recorded the deed."
Van Horn contends the fact this agreement was invalid on its face and the apparent failure of the council to approve it "didn't deter the conveyance agreement from being presented to the council on the day of its vote while bolstering the agreement's [legal] validity at the meeting."
There's more. "The recorded deed also doesn't require a perpetual dam. Yet that didn't stop the administration from reporting to FEMA that deed restrictions could prevent removing the dam," says Van Horn.
------------v------------
Mike Masterson's column appears regularly in the Arkansas Democrat-Gazette. Email him at mmasterson@arkansasonline.com.
Editorial on 04/10/2016