City Hall packed for McDonald's appeal

The McDonald's hearing drew a capacity crowd. photo by Jim Mitchell More than 70 citizens packed City Hall at last week's appeal hearing on a proposed McDonald's restaurant at the west end of Sisters.

Cache Mountain Development proposes to build a 4,453-square-foot structure containing a McDonald's restaurant and a convenience market associated with a gas station just west of the Comfort Inn along Highway 20.

Mark Peterson, representing Sisters Citizens for Responsible Land Use, filed the appeal after the planning commission approved the application last month.

Planning Director Bill Adams outlined issues involved in the appeal. Most of the testimony and discussion involved the Development Code's definition of "drive-in," "drive-up," and "drive-through" and whether the gas station is included under one of those terms. The second appeal item concerned the traffic impact created by the development.

Adams stated that the city's comprehensive plan and the development code contain no reference to drive-through facilities for auto-oriented uses. He cited facility review standards from the State of Maine as the basis for decisions in many, but not all, states. The Maine standards specifically exclude gas stations as drive-through facilities.

According to Adams, the planning staff has reviewed the applicant's traffic report by Scott Ferguson & Associates and found the methodology to be credible and the results within the trip cap established by Oregon Department of Transportation (ODOT).

Adams' conclusion:"There is not enough information at this time to reverse the planning commission's ruling."

Councilor John Rahm questioned the apparent inconsistency of language in the development code and asked whether supplementary information existed from those who developed the code. He acknowledged that the code was developed in a "herky-jerky fashion."

Adams replied that there was an unsuccessful attempt to find that information.

He offered, "One of the ways we can look at 'purpose and intent' is to look at the purpose and intent of the Highway Commercial Sub-District."

Section 2.2.190 specifies: "Purpose. This zone is intended to provide for areas suitable for commercial uses and services primarily oriented to automobile traffic with limited highway access points and off-highway internal circulation plans."

Tia Lewis, legal counsel for Cache Mountain Developers, noted that the project had started with then-City Planner Neil Thompson.

She emphasized that the project has been approved by City of Sisters Planning and Public Works Departments, ODOT and the City of Sisters Planning Commission.

Roger Nelson, attorney for the appellants, focused on the city's "failure to comply with the Sisters Development Code." Citing the code provision that the facility must be "subordinate to a primary permitted use," he concluded that the drive-in restaurant is not a permitted use. In his opinion, the gas station is a drive-up facility.

The applicants testified that they had contacted Neil Thompson and code consultant Eric Porter regarding the 400-foot drive-up separation rule. Thompson and Porter agreed that "drive-up" was not intended to include gas stations. In an e-mail addressed to the applicants, Thompson said that the drive-up asset of a gas station is not subordinate to anything. It is a primary use. Porter, in a written statement, stated that the intent was to prevent a long line of drive-ups.

Lewis said, "You can't fit a gas station into the drive-up, drive-in, or drive-through provisions of this code. Clearly you drive up to a gas station, but for purposes of this code, 'gas station' just does not fit within it."

She added, "We looked through the legislative history and couldn't find anything at all. We looked at all the minutes of city council and planning commission meetings as well as the notes of the consultants Angelo Eaton & Associates, who helped draft the code.

"We could not come up with any further information as to the intent of the 400-foot separation provision."

The appeal has been based partly on the validity of traffic numbers from a 1972 study being used in the Institute of Traffic Engineers (ITE) manual. Lewis pointed out that the ITE manual is an accepted engineering manual for traffic generation prediction.

Nevertheless, the applicants commissioned a supplemental traffic study, which was done by Ferguson and Associates.

The results were dated December 6, 2004.

Using fast food and convenience stores with gas pumps along Highways 20 and 97 and factoring in footage and the number of pumps, actual counts showed lower "P.M. Peak Hour" trips than the original study used in the application.

According to Lewis, the study was approved verbally by ODOT, with written approval to follow.

In testimony, Steve and Robin Rodgers and Darren and Donna Layne, partners in Cache Mountain Development, generally focused on community support for the project.

Despite acknowledging that this was a code issue, the opponents of the project had previously lined up a series of speakers at the Planning Commission hearing opposed specifically to McDonald's.

At the appeals hearing the applicants reversed the roles, providing testimony from Teresa Fehrenbacher, Executive Director of Ronald McDonald House Charities of Central Oregon, Nanette Bittler and Paul Rodby, owners of Central Oregon McDonald's restaurants, and Dawn Hover from McDonald's Corporate offices in Kirkland, Washington.

All lauded the benefits of having a McDonald's in the community -- employment benefits to both adults and teens, charitable support of community programs and direct support of Oregon farmers.

Jim Kress, a teacher at Central Oregon Community College, emphasized the employment opportunities for students.

He promotes the idea of students working in chain stores in his retailing classes. He feels they develop a work ethic and responsibility and learn to work in teams.

Bill Merrill, former Planning Commission Chair, agreed with Bill Adams that the present code is ambiguous and does not define drive-up, drive-in, or drive-through.

In a lengthy argument, he presented definitions of these terms as derived from the Random House Dictionary, then proceeded to argue that there are two drive-in, drive-up facilities in Cache Mountain's application and a decision should be "based on 'reasonableness' because no one knows 'intent.'"

Mark Peterson, who filed the appeal, emphasized the appeal was based on the code, not on the tenants.

Marie Clasen concluded the opponent's testimony with a challenge to the validity of the traffic study commissioned by Cache Mountain.

Tia Lewis, with a final rebuttal, challenged attorney Roger Nelson for his "mental gymnastics," and asserted that Nelson's testimony concerning "permitted use" versus "conditional use" was an issue not stated in the formal appeal filing and therefore should be excluded from consideration.

She added that, though not defined, the drive-in, drive-up, drive-through issue is definitely described in the code.

Verbal testimony concluded, Mayor Dave Elliott announced that the written record would be left open for one week and a decision will be announced at the December 23 city council meeting.

Forms had been provided for written testimony -- with check-boxes to indicate support/no support of the planning commission decision to allow this development.

All 24 of the forms submitted supported the decision and several wrote comments.

Of those who added comments, Alinda Dunne's was typical: "The planning commission made a very fair decision in this case. All the rest of this public meeting is a waste of both time and dollars from the City Budget. Let's think smart."