Bend councilors wrestle with issues and legal situation, vote 5-2 not to hear appeal of disputed gas station
(Update: Details of comments, council discussion, 5-2 vote not to hear appeals)
BEND, Ore. (KTVZ) – It was almost inevitable that in the end, emotions would run high among some foes of a long-disputed proposed southeast Bend gas station Wednesday night, after city councilors weighed their options, then voted 5-2 to not hear appeals that may well go to a state appeals board anyway.
“We're going to be stuck with a gas station polluting our neighborhood! Would any of you want that? Would you? How dare you! How dare you not represent the citizens who voted you in?” leading opponent Susan Gaylord shouted at the council after the vote, before being escorted out by Police Chief Mike Krantz.
She'd also pointed to the mounting cost to neighbors of yet another appeal. Her interruptions prompted Mayor Melanie Kebler to use her gavel and say they’d have to stop the meeting take a break if she didn’t cease.
Councilors Ariel Mendez and Anthony Broadman voted against the motion by Councilor Mike Riley to decline to hear the appeal, which seconded by fellow colleague Megan Perkins. Kebler and councilors Barb Campbell and Megan Norris also voted for the motion to let the hearing officer's approval stand as the final city decision.
City planners also pointed to serious legal repercussions, with the matter going to court if the final city decision – including hearing appeals – didn’t happen within the 120-day deadline from the application filing. City Attorney Mary Winters said while that language is in the city’s development code, “it just reflects state statute and is not something city council would have the discretion (to) waive.”
Kebler pointed out to those waiting to speak that those rules make clear that “we cannot consider anything outside of the record. … We cannot consider signs (and the audience had some. We cannot consider a letter to the editor. That is what is legally required.”
Several people spoke during the visitors' section, including Gaylord, who said, “I’m hoping people’s voices will be heard by the city council.”
Other area residents such as Kevin Johnson expressed concern about the gas station “being forced upon our neighborhood, despite overwhelming opposition to the gas station and drive-thru.”
One of the other area residents who spoke, Jim Christo, said the council had been dealt an "800-point gorilla" and painted into a corner, calling it a “defining moment” for the council and the city.
But amid citizen calls for the council to take up the matter, Winters, the city attorney, said the state Land Use Board of Appeals only would provide deference to the city if there is some ambiguity in the city code that they needed to weigh in on – and that wasn’t found by city staff in this case.
In fact, Winters said at one point that attorneys for the applicant had asked city officials not to allow the appealing neighbors to speak Wednesday night, but that “we decided to allow it,” while also advising them that their remarks outside of the official record could not play a role in the decision.
When it came time for councilors to speak, Mendez -- who said disagreement is "a healthy part of democracy -- called it a “challenging case with a a lot of complexity.” One issue it raises and he said he wants the council to address is “a perception of eastside-westside disparity,” which he said is “sometimes not well-founded” -- but that “in the case of transportation, I think there is.”
And he said that issues of auto-dependent projects and the exceptions for them in the code -- "a 'Get Out of Jail Free' card" for developers, as he put it -- are something "the council is in a unique position to address."
“The code is supposed to be a reflection of our community values,” Mendez said, although he added, “Given the wide variance of what constitutes auto-centric development, there’s room for reasonable disagreement.”
Riley agreed that the issues raised in the gas station dispute point to “a variety of city-wide issues. But the way I understand the law and the way our system works, we’re not allowed to change the rules, change something in place at the time of an application. I want to have that conversation, but I can’t do that in that context.”
City Manager Eric King was directed and agreed to bring those issues back for the broader discussion.
They also are upset that councilors are being told they must rely on the record and not consider new testimony at Wednesday's meeting, which is not a public hearing on the project, only a decision on whether to hold one at a later date.
While the residents in general say they are not opposed to the rest of the retail project, they are against the gas station.
Leading foe Susan Gaylord said earlier Wednesday, "We have a poll: 85 percent of people who responded to the poll do not want a gas station. We want city council not to decide on something because they're passing the buck or feel like they don't want to get involved in litigation or whatever the issue is. This is not just a southeast Bend issue. This is a citywide issue."
The planner's memo and other documentation before councilors is at item No. 6 on the city council agenda.
