Formula food ordinance vote reveals divide on the city council

Despite widespread and vocal support for restricting formula food restaurants in Sisters, the Sisters City Council voted 3-2 to reject an ordinance that would have done just that (see related story, page 1).

Councilors Sharlene Weed and Brad Boyd sided with the apparent majority public opinion, while Mayor David Elliott and councilors Judy Trego and Lon Kellstrom voted against the ordinance.

The vote revealed a divide on the council between those willing to risk legal opposition from business and development interests and those council members who felt that risking litigation was not fiscally responsible.

Legal counsel provided by attorney Pam Beery of Portland concerning the drafted formula food ordinance acknowledged a “manageable” risk of legal opposition.

“It just depends on everybody’s flavor for risk,” said City Manager Eileen Stein the day after the vote.

Outside of the June 9 council meeting, Councilor Boyd told The Nugget, “I look at it and go, ‘Other towns have done this. We’ve got a legal opinion here that says it’s a manageable risk. Let’s protect this town. Let’s be proactive.’”

Weed shared Boyd’s level of comfort with the risk.

“It wasn’t like, okay, we’re working to pass this ordinance and then getting ready for a lawsuit. As far as possible litigation goes, I just don’t see that argument holding true because the communities who have passed ordinances have never had a problem with litigation,” she said.

Those council members who voted no on the ordinance felt that any risk was a detriment to the city.

Mayor David Elliott said that he wanted “something that removes that word out of the ‘manageable risk.’ I enjoy ‘manageable.’ I don’t enjoy the word ‘risk.’ If they can get that out of the legal description, hey I’m going in their direction to satisfy everyone.”

Councilor Kellstrom said, “It was pretty obvious that we were facing lawsuits if we passed it. And there’s no way the city council could allow that to happen. What I got directly from the city attorney, when I asked him after the public testimony was over, ‘Can we expect Measure 37 lawsuits?’ and he said, ‘Absolutely.’”

Any Measure 37 claim would hinge on the question of lost property value due to restrictions on the type of business allowed. Kellstrom said, “The proponents made mistakes. Their land-use attorney... was cavalier about her assessment of the legal risks the city faced. Nobody gets to define the manageable risk other than the city council, because you’re committing staff time and staff taxpayer dollars to this ... in court. I think we probably would’ve lost any lawsuit we had especially if it had been in a Measure 37 claim.”

The legal risk involved in adopting the formula food ordinance was one of several reasons Councilor Trego voted no.

“I don’t feel compelled to bankrupt the city … we (the city council) do have a responsibility,” said Trego.

Boyd doesn’t think legal risk was really the issue for the council majority.

“The lawsuit thing gave cover for two of the people, at least, on the city council, who didn’t want to vote for the ordinance,” in order to, “seem reasonable,” said Boyd.

“They were never going to vote for it,” he said.

Weed was surprised at the final outcome.

“I was disappointed with the decision of the council and I thought the decision was shortsighted,” she said.

Kellstrom said that if both sides of the issue were assembled in a committee to determine how best to formulate a restriction against fast food he would “be happy to consider it down the road. But, the standard on the city council for the six and one half years that I’ve been there has been … that we’re not looking to get sued. We are risk averse.”

Trego indicated that it was a settled issue for her.

“I don’t see an ordinance like this being something that I would want to pursue. I felt that it was too restrictive … it didn’t allow for other types of restaurants coming in.”

When asked by The Nugget if the mayor would support a different version of an ordinance restricting formula food, he responded, “You’re not going to get me to say that, but I do have some ideas about what the public wants … and we (city officials) need to be guided by the public.”

Middle ground on formula food in Sisters is in short supply on the council. This concerns City Manager Stein.

“When you have those kinds of splits … they start playing on each other. Coalitions start being created, like us-versus-them kind. So I worry about that a little bit.” Stein said.