Council grants TUP - with conditions

Celia Hung and Richard Esterman have an approved temporary-use permit (TUP) for multi-vendor events on a lot at the corner of Cascade Avenue and Oak Street - but nobody got what they wanted.

Last Thursday, the Sisters City Council adopted an amended version of the planning commission's recommendation to grant the TUP. That's a disappointment to those who wanted to see the TUP denied, but the approval comes with conditions that don't please Hung and Esterman.

The key provisions of the approval are: The TUP will be valid from September 13, 2014 and terminates on March 11, 2015. A transient merchant license fee of $100 per day per vendor will remain in effect for each vendor on the site. Sisters' "western theme" requirement is met by the use of white tents and a façade as proposed by the applicant. Use of colored tents must be approved by city staff on a case-by-case basis. Adjacent public streets may be shut down between 5 p.m. and 8 a.m. for loading and unloading for events.

On Thursday, Hung/Esterman's Lake Oswego attorney Wendie Kellington maintained that the TUP should be granted without amendments. She also argued that the requirement of a transient merchant license for each vendor was unfair, not consistently applied by the city, and ultimately unconstitutional. It is her position that the combination of the TUP to cover the land use and Esterman's $500 business license as a promoter should cover the licensing for all potential 90-odd vendors that may elect to sell at the site during an Esterman-promoted event.

Kellington also argued that the TUP does not require that the 180 days allowed by the permit be consecutive. She maintained that Hung/Esterman were free to select any set of days out of the 365 days allowed by the TUP that best suited their needs, as long as they did not exceed 180 days total. The council disagreed.

Bend attorney Bruce White - representing John and Jean Wells Keenan - argued against granting the TUP under any circumstances. White maintained that the intent of the TUP was to allow a single temporary business to operate in the downtown business core for a limited time.

Chris Wilder of Sisters Log Furniture seemed to summarize the concerns of those in the brick-and-mortar business community who oppose Hung/Esterman's proposed uses of the vacant lot.

Wilder said, "My overarching concern is that this proposal is for a multi-business multi-vendor. As I understand it, at least the spirit of the law has been for one single business to set up for a short, temporary time period. It has never been the vehicle for more than one business, let alone up to 91 separate businesses in one location.

"Where we have historically seen many separate vendors setting up tents is in public venues, mostly in city parks. There is a vehicle for this, it is called a special events permit. For a fee, one can rent the park and have a vendor fee for the weekend. At this current time all transient vendor fees are waived under that license... As I see it, this specific request should have been reviewed under a special events permit on private property," continued Wilder.

"The request should have stopped there," said Wilder. "This should never been about what the tents look like, what the vendors were selling, or who they are. This is nothing more than a distraction from the real issue at hand."

Esterman pointed out that when he approached the city with this project he was told that a TUP was the proper vehicle for his proposed use.

Esterman also noted that a number of the quilts displayed at Quilt Show were for sale. He stated that if his vendors had to pay the transient merchant license (TML) fee, that each of the quilt show vendors should also have to pay TML fee of $100 per day. However, quilt sales at the show are run through the Quilt Show and thus do not require individual transient merchant licenses.

It would appear that there is some agreement on both sides that vendors in public venues and vendors in private venues should be treated the same in terms of paying the TML fee. Currently those vendors setting up on public property, and covered under a special event permit, at the city's discretion, can receive an exemption from the $100-per-day fee.

Hung has spent a considerable amount promoting her cause. Besides securing a long-term lease on the land before any permits or licenses were issued, she also paid the roughly $15,000 in transient vendor fees assessed for Esterman's Sisters Artists Marketplace held on Quilt Show weekend. She did this rather than add that charge to the fees already being charged for booth space.

As the controversy over this particular TUP rolls along, the city council is looking at changes to its code that would eliminate the TUP and create a different "temporary business license." The council is also looking at some changes to its special event permitting.