McDonald's clears city council hurdle

What started out as an application to construct a new building containing a restaurant, a convenience market, and a gas station turned into a city-wide verbal battle over whether McDonald's should be allowed to do business in Sisters.

The controversy packed City Hall on multiple occasions and prompted Councilor Sharlene Weed to comment, "I love having a room full of people who are passionate about something!"

On Thursday, December 23, a crowd of 45 watched the city council debate and, ultimately, give the green light to the project.

Sisters City Council members agreed that the current Development Code contains loopholes, is not consistent and leaves much to interpretation. Despite the code's shortcomings, the council voted 4-1 to uphold a previous planning commission decision to allow Cache Mountain Development to proceed with their building plans.

A written appeal of that decision, filed by Mark Peterson on behalf of a Sisters citizens group, states that the applicant 1) does not meet the Development Code prohibiting more than one drive-in/drive-up / drive-through facility within 400 linear feet along the same street frontage, and 2) exceeds the traffic impact as dictated by the Oregon Department of Transportation (ODOT).

The appeal further states that the wrong definition was used to determine traffic impact at the intersection of Railroad Street and Highway 20.

The opposition started out as an emotional outburst against McDonald's and "Corporate America." They shifted gears when told by Brad Boyd, Councilor-to-be, that emotions didn't count.

At an early citizens' meeting he told the group, "We can't punish the developers. These are not just any 'no-face' developers from outside. McDonald's is coming in on codes already developed."

So the opposition originally known as "Citizens against McDonald's," became "Sisters Citizens for Responsible Land Use" by the time of the appeal and their mission became an attack on the city's development code.

The appeal hearing on December 9, attended by at least 70 people, centered on traffic impact studies, the definitions of drive-up/drive-in/drive-through, and whether a gas station fits into one of those categories.

The City Council elected to delay a decision for two weeks to allow councilors to review all testimony and evidence.

In the next two weeks the planning staff provided each councilor with volumes of data, including the planning department's original "Facts and Findings," all testimony, and further facts and interpretations from the planning department.

Bill Adams, City Planner, led the presentation to the council on December 23.

He supported the developer's self-imposed traffic study, which involved actual traffic counts in Bend, as a "more refined trip analysis and methodology," which had been agreed to by the Oregon Department of Transportation (ODOT).

When Councilor Weed questioned prior definitions used from the Institute of Traffic Engineers (ITE) Manual, Adams responded, "That manual was based on old definitions from the East Coast. Local counts supersede."

He concluded that traffic impact was "no issue."

A long discussion followed on the 400-foot separation issue.

Debate centered again on the definitions of "drive-up," "drive-in," and "drive-through" and whether the gas station is one of those.

It was agreed that, rationally, a gas station is a "drive-through," but Bill Adams said that the codes from other cities go both ways as to whether a gas station is or is not a drive-through.

Absent a specific definition in the Sisters Development Code, Adams asserted, "Interpretation of the code could say the gas station is not a drive-through."

Debate and questions continued over this issue, then moved to "permitted" vs. "conditional" use, in an attempt to clarify whether the 400-foot separation rule was being violated. No clear-cut answers came forth.

Adams presented three options to the council:

Sustain the planning commission approval; sustain planning commission approval with added conditions; or overturn the planning commission decision.

Councilor and Mayor Dave Elliott pointed out that the application had been approved through all steps so far and that the appellants had the burden of proof, which he felt they did not meet.

Councilor Judy Trego said, "There are a lot of different interpretations (of the development code), but I believe the applicants have met the code."

Councilor John Rahm stated, "The applicants do meet the code but the code needs a lot of work."

With no additional comment, Councilor Lon Kellstrom agreed.

Lone dissenter Sharlene Weed, part of the committee that wrote the code, stated a concern about traffic, especially with the recently announced Hayden Homes 400-unit development.

She said, "I can't vote to uphold the planning commission decision."

The vote of 4-1 in favor of supporting the planning commission decision will stand unless an appeal is filed with the Oregon Land Use Board of Appeals (LUBA) within 21 days.

Appellant Mark Peterson said, "I was surprised. It seemed that the city planner was more an advocate for the project than an impartial presenter. We are seriously considering an appeal to LUBA."

The Land Use Board of Appeals was established by the Oregon Legislature in 1979. LUBA hears and rules on appeals of land use decisions made by local governments and special districts.

LUBA, consisting of three board members who are appointed by the Governor, is the only forum that can hear appeals of local land use decisions. LUBA board members are attorneys who are experts in land use planning law.

An appeal to LUBA requires a $325 fee.

Part, or all, of the fee is refundable if the petitioner wins the appeal.

In addition, a petitioner can represent himself, but a group, organization, or corporation must be represented by an attorney.