TUP ball is back in City's court

A dustup over the application for a temporary-use permit (TUP) for proposed events on a vacant lot in Sisters is back in the City of Sisters' court. The Oregon Land Use Board of Appeals (LUBA) remanded the matter - in part - back to the Sisters City Council for more work.

Controversy over the matter arose when Celia Hung and/or Richard Esterman sought a temporary-use permit to host events on a vacant lot that Hung had leased on the corner of Cascade Avenue and Oak Street. The City ultimately granted the TUP, but with conditions that Hung and Esterman did not accept. They petitioned LUBA for a ruling on the matter, which was handed down earlier this month.

There were several points of contention and argument. LUBA sent the matter back to the City on the question of whether Esterman's TUP would qualify his events as "special events" under City definitions and whether event vendors should be eligible for transient merchant license (TML) fee waivers.

"If the City wishes to take the position that Special Event TML Fee Waiver does not apply to petitioners' vendors, simply because petitioners have now secured a TUP, it needs to (1) more clearly take that position in its decision, and (2) adopt interpretive findings to explain why the City Council believes TUPs do not qualify as "special-event permits'..." LUBA ruled.

"On remand the City Council must consider whether petitioner Esterman's business license as an "event coordinator' qualifies as a "special-event permit' so that the TML fee waiver ... applies to petitioners' vendors, and adopt findings to explain its position on that issue."

There was also a disagreement over when the time limits of a TUP should come into effect. LUBA partially sided with Esterman and Hung on the matter, noting that "The express language of (the development code) allows the authorized period of up to 180 days to begin and end any time within a 365-day period." However, that point was not regarded as a basis for a remand to the City.

The effect of the remand is not clear, since the City of Sisters is currently involved in an overhaul of its code for handling all kinds of events and transient business activity (see related story, page 12).

"That's a good question," Community Development Director Patrick Donovan said when queried about the effect of the LUBA ruling. "That's an interesting scenario there. I don't know how that's going to work now."

Richard Esterman told The Nugget that his position is that he should still be able to obtain the TUP he and Hung originally applied for, regardless code changes that may eliminate the TUP. After that TUP expires, he would then be under whatever new rules end up being adopted.

"I would think that they'd still have to uphold and do the TUP, since it went through the (LUBA) process," Esterman said. "That needs to be grandfathered in, otherwise this whole thing doesn't make sense."

There is another issue that is yet to be resolved. Hung paid $15,600 in transient vendor fees assessed for Esterman's Sisters Artists Marketplace held on Quilt Show weekend in 2014. That event was not held under the TUP. She did this rather than add that charge to the fees already being charged for booth space.

The legal question of whether those fees were properly assessed or should have or could have been waived was set aside pending the LUBA decision.

Author Bio

Jim Cornelius, Editor in Chief

Jim Cornelius is editor in chief of The Nugget and author of “Warriors of the Wildlands: True Tales of the Frontier Partisans.” A history buff, he explores frontier history across three centuries and several continents on his podcast, The Frontier Partisans. For more information visit www.frontierpartisans.com.

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