Bend/Sisters Garden RV Resort v. City of Sisters

Pursuant to Sisters Municipal Code (SMC) 5.24.115(1), “[n]o person or other entity shall engage, conduct[,] or participate in the business of a transient merchant in the City without first obtaining a temporary business license,” unless otherwise permitted under SMC 5.24.115(5) because “the transient merchant activity is held in conjunction with a special event for which the sponsoring organization has already secured a special event permit from the City.”

Bend/Sisters Garden RV Resort LLC, Celia Hung, Richard Esterman, and Central Oregon Shows (collectively, “petitioners”) sought the disputed temporary use permit (TUP) in order to lease spaces that would allow multiple outdoor vendors to sell items on a two-acre property located in the City of Sisters. The vendors would occupy a total of ninety-one portable pop up tents, each ten-feet by ten-feet, as well a larger main tent central to the area. The city approved the application for the TUP with conditions that petitioners oppose on appeal. Although petitioners challenge the city’s interpretation and application of a time limit imposed by the Sisters Development Code (SDC) on TUPs, the majority of the parties’ dispute in the appeal involved the relationship between TUPs authorized by the SDC and Transient Merchant Licenses (TMLs), which are issued under SMC Title 5.
Petitioners’ first assignment of error was an interpretive challenge concerning the final sentence of SDC 2.15.1900(C)(2). Petitioners argued that the 180-day time limit does not begin until the TUP is first used and the 180-days need not be measured in consecutive days to better fit their business purposes. LUBA denied that assignment of error, having found no error in the city’s application of SDC 2.15.1900(C)(2). In its second assignment of error, petitioners challenged a condition requiring individual vendors in the development plan to obtain separate business licenses and fees. Due to inconsistencies with relevant contextual requirements in the SDC, LUBA determined that the city would need to more adequately explain and clarify its legal reasoning regarding whether vendors would qualify for TML fee waivers or adopt interpretive findings to explain why the city believes TUPs do not qualify as “special event permits” within the meaning of SMC 5.24.115(5). LUBA sustained the second assignment of error in part. The city’s decision was REMANDED.