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
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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…”
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