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About The nugget. (Sisters, Or.) 1994-current | View Entire Issue (Jan. 21, 2015)
30 Wednesday, January 21, 2015 The Nugget Newspaper, Sisters, Oregon FOOD CARTS: Council declined to intervene on staff decision Continued from page 1 the planning decision was made. The council had requested that City Attorney Steve Bryant weigh in on legal questions surrounding the issue. He provided them last week with a five-page let- ter responding to a series of questions on the matter, con- cluding that the application by then-mayor Brad Boyd had been handled correctly; that there is no legal basis for changing the decision; and that the City could be exposed to litigation if it attempted to do so. Councilors were to review the letter prior to their regular Thursday-morning workshop, and they accepted its findings without questions or com- ments. (The letter accompa- nies the online version of this story at www.nuggetnews. com.) The speed with which the matter was dealt with sur- prised Melissa Ward, who wrote the sole letter oppos- ing the original site-plan application. She arrived just after the workshop started to find that the mat- ter had already concluded. “I think the decision is premature,” she said. “It’s abrupt. I was, what, three minutes late and it was already decided.” The abruptness may be laid to the council’s clear per- ception that Bryant’s letter addressed the issues and that the case is open-and-shut. “I think it was pretty clear what our options were — or lack thereof,” said Mayor Chris Frye. He also noted that Bryant’s letter made it clear that “code was interpreted correctly.” One of the key controver- sies surrounding the decision is that the planning commis- sion never had the opportu- nity to review the matter. City staff’s standard procedure has been to pass Type II site plan reviews on to the planning commission, which then has the option to call the plan up for further review, including a public hearing. (Referral does not mean that an application would necessarily be taken up by the commissioners.) The standard practice of referral was not followed in this case. That created a problematic perception for the City, since the application was made by a public official. Yet it turns out that “stan- dard practice” was not very standard — and Boyd’s appli- cation was far from the only one that was not sent on. According to records pro- vided by City Recorder Kathy Nelson, “There were 12 Type II decisions made in 2014. Pauline (Hardie, Community Development Director) han- dled one and forwarded the decision onto the planning commission. Eric (Porter, senior planner) handled 11 and forwarded one decision onto the planning commission. There was one called up by the planning commission — the Celia Hung temporary use permit application.” According to Bryant, that referral is not required by code. His letter states that “there was no violation of the city code or develop- ment code in not involving the planning commission in the decision for this applica- tion … (code) allows plan- ning staff to defer the Type II decision to the planning com- mission for decision if they so chose (sic). It does not require the planning commis- sion’s involvement or review of the staff decision. In this instance staff chose to make the decision.” Critics of the decision take issue with that inter- pretation. They argue that another section states that three or more members of the planning commission can call up a Type II site plan review — and that the com- missioners can hardly call up an SPR that they don’t know exists. City officials from the planning commission chair- man to the mayor have acknowledged that the plan- ning commission should see every site-plan review. The council agreed that such a policy should be clearly codi- fied. Language to that effect should be ready for council approval in March. Ward and others expressed concern that other business wanting to site food carts might be able to apply before March and be treated the Specializing in Central Oregon Rural Properties A Parteership Beyoed Your Expectatioes Stop by aed visit with Tiaea Vae Laeduyt & Shelley Marsh. 220 S. Pine St., Ste. 102 | 541-548-9180 • New Construction • Remodels • Service Calls rockin’ robyn’s food cart at rose City pod in portland. food carts at eurosports will be required to conform to City of sisters’ Western theme. same way as Boyd’s applica- tion was. However, community Development Director Pauline Hardie told The Nugget that she is “not aware of any other site-plan review applications in the pipeline for food carts,” and that in any case, “any Type II deci- sion made between now and March will be referred to the PC.” Bryant offered a firm legal opinion that the City can- not unwind Boyd’s approval without facing significant legal risk. “If the city council were to overturn the decision or require Mr. Boyd to resub- mit his application, I would expect that Mr. Boyd would bring a lawsuit against the city to enforce the decision and seek damages from the City,” Bryant wrote. “I expect there is a high probability that Mr. Boyd would be suc- cessful in that lawsuit… The City should expect that the financial consequences to the City would be significant and would likely not be covered by the City’s insurance…” looking to share a Home at Black Butte Ranch? 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