3A
THE DAILY ASTORIAN • WEDNESDAY, DECEMBER 28, 2016
Appeals court agrees to hear Oysterville case
know what I can do and can’t
do.”
Oysterman
hopes for an
end to legal
purgatory
History of the case
By NATALIE ST. JOHN
EO Media Group
OLYMPIA, Wash. — It
ain’t over yet. Oysterville Sea
Farms owner Dan Driscoll’s
long-running legal dispute
with Pacific County is going
to the state Court of Appeals.
In a statement earlier this
month, justices granted the
county’s request for review,
saying they have concerns
about how a Pacific County
Superior Court judge han-
dled an appeal of a previous
South District Court decision
in Driscoll’s case.
While the appeals court
review will take more of his
time and money, Driscoll
hopes it will provide some
much-needed clarity about
how local ordinances and
zoning rules apply to the
retail seafood shop he runs
on the site of his family’s his-
toric Oysterville cannery.
“I hope this is moving for-
ward,” Driscoll said. “The
state of purgatory has both-
ered me more than anything
else. All I’ve wanted is to
In June 2014, the county
Department of Community
Development cited Driscoll
for violations of county ordi-
nances and zoning rules.
Officials alleged that by
expanding the store’s inven-
tory and offering food, beer
and wine, he overstepped the
terms of the “grandfather-
ing agreement” that allows
his business to operate in
a zone where commercial
activity isn’t allowed. The
county alleges that Driscoll’s
business could harm the sur-
rounding environment, and
create a pathway for other
businesses to set up shop
along the ecologically sensi-
tive shoreline of the Willapa
Bay.
Driscoll asked for a hear-
ing in South District Court,
in hopes of getting a defin-
itive answer about what he
was and wasn’t allowed to
do. In fall 2015, Judge Doug
Goelz upheld the county’s
citations, and fined Driscoll
$300. However, he also ruled
that Driscoll did have the
legal right to continue oper-
ating the shop, with certain
limitations.
Acting at the direction of
the county commissioners
and the Department of Com- protocol for appeals cases.
munity Development, Prose- When hearing an appeal, a
cutor Mark McClain tried to judge is only supposed to con-
appeal the ruling in Pacific sider whether the evidence
County Superior Court, argu- supported the lower court’s
ing that a District Court findings. Instead, the county
judge did not have the legal said, Faubion considered the
authority to make land-use evidence “de novo,” mean-
decisions. In Janu-
ing that he essen-
ary, visiting Supe-
tially started fresh,
rior Court Judge
and heard the case
William
Faub-
again. The county
ion dismissed the
also argued that the
county’s request
District and Supe-
for an appeal.
rior Courts inap-
But Driscoll also
propriately used an
asked for, and was
infraction hearing
granted, an appeal.
to make decisions
In a July deci-
about a land-use
sion,
Faub-
issue.
Dan Driscoll
ion reversed the
The
justices
citation
convic-
agreed with the
tion, and determined that county, saying, “The Supe-
Driscoll’s business was not rior Court’s rulings appear to
in either of the restrictive be de novo considerations of
land-use zones the county the factual issues before the
believed it to be in. Further- District Court, rather than
more, Faubion called many considerations of whether the
aspects of the county’s ratio- record supported the District
nale for pursuing legal action Court’s findings. By making
against Driscoll “erroneous,” such de novo decisions, the
and said he did not see any Superior Court departed from
evidence that Driscoll’s busi- accepted and usual course of
ness activities posed a threat a court sitting in an appel-
to the environment.
late capacity.” Furthermore,
the justices said the Supe-
rior Court “… sanctioned
Justices weigh in
The county asked the the District Court’s departure
appeals court to review Faub- from the accepted and usual
ion’s ruling, arguing that course of judicial proceed-
Faubion broke with standard ings …” by allowing it to
Astoria pot store developer pulls permit application
By ERICK BENGEL
The Daily Astorian
A business developer
who sought to open a pot
shop in a condominium com-
plex near Pier 39 has with-
drawn his permit application
a week after the Astoria City
Council turned down the
project.
“At this time, the project
will not be moving forward at
this site,” Julie Yuill, executive
secretary to the city manager,
said in a release Tuesday.
A special City Council
meeting to hold a final vote,
which was scheduled for
Thursday, has been canceled.
Last week, the council
unanimously overturned a
Planning Commission deci-
sion allowing Daryl Bell to
open the medical-recreational
dispensary, called West, in the
Cannery Lofts condos, Build-
ing A, on Abbey Lane.
The prevailing opinion
of the Planning Commission
was that Bell and his associ-
ates would be using the space
as it was zoned for, namely,
as a non-tourist retail estab-
lishment. Though the upper
floors are residential units,
the ground-floor spaces are
mixed-use.
But, in response to an
appeal brought by Heather
Hansen, who lives in the con-
dos, the City Council reversed
the Planning Commission’s
decision.
The councilors agreed
with Hansen, Clatsop Coun-
ty’s community development
director, that West would have
been incompatible with the
residential character of the
property.
Cannery Lofts residents had
also feared that the store would
attract vagrants, create parking
problems and increase security
concerns on the premises.
After the City Council’s
initial vote, Bell said he would
probably not appeal the coun-
cil’s decision to the state Land
Use Board of Appeals. The
degree of opposition from
condo residents did not sit well
with him, Bell said, and he and
his associates did not want to
set up the store where they
were not wanted.
Bell’s project was the
first proposed pot shop to get
rejected by the city. Astoria has
five marijuana dispensaries,
but Bell’s would have been the
first at a mixed-use building
with residents.
W A NTED
Alder and Maple Saw Logs & Standing Timber
N orth w es t H a rdw oods • Lon gview , W A
make a land-use decision —
something that only Superior
Courts can do.
“Obviously, I am pleased
that the Court of Appeals has
agreed with our review of the
law as it relates to this case,
but the most important aspect
of this case, at least for me
as the attorney representing
the county, is that decisions
are made which are consis-
tent with our local land-use
code,” McClain said in an
email.
Driscoll and
McClain respond
The appeals court has yet
to set a date for hearing the
case, but there isn’t likely
to be a new ruling any time
soon. It can take several
months for justices to hear
arguments in a case. Then, a
year or more can pass before
the judges issue a decision.
If the justices uphold the
Superior Court decision, it
could finally bring an end to
the legal dispute. However,
if they overturn the deci-
sion, more legal wrangling is
likely.
“It really is progress. I am
happy that we’re moving for-
ward at least,” Driscoll said.
However, he is frustrated that
his business plans will remain
in limbo for the foreseeable
future. Although Faubion’s
Consult a
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ruling was largely favorable
to Driscoll, it did not obli-
gate the Department of Com-
munity Development to give
him the food establishment
license that he needs to oper-
ate legally. So, he still can’t
operate the business as he’d
envisioned.
“I feel that all of this is
being done for something
that’s already been deter-
mined,” Driscoll said. “It’s
frustrating for people to jump
through all the hoops to oper-
ate a business, but it’s par-
ticularly frustrating to jump
through all the hoops they’ve
already jumped through.”
In his statement, McClain
said he had continued to pur-
sue the case because the
county commissioners felt it
was extremely important to
make sure that courts uphold
local land-use laws.
“The county has, and
certainly will, continue to
attempt to solve these zoning
issues so that Mr. Driscoll can
operate his business while
complying with the code.
Hopefully, that will be the
course in the future, rather
than this protracted suit —
but those are issues left to the
Department of Community
Development, the Board of
Commissioners, Mr. Driscoll
and his attorney,” McClain
said.
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