What Have They Done Now?
What’s this all about?
In a City Council Meeting on February 21st, using the pretext of safety issues at Century Center, City Councilors Moseley, Abernethy, Livingston and Mayor Roats passed City wide policy, in a case of classic government over reach, which we will negatively affect business, non profits, and drastically curtail the very authentic culture which is Bend. Read on and learn more about this badly constructed policy which discriminates against business, and places policy interpretation, application, and enforcement squarely in the hands of one City employee. This is not the leadership our community needs at such an important growth period in Bend’s history. Raise your voice. Get involved. Vote in November.
What is the TCO which the City Council just limited to between 1 and 3 per location annually?
According to Licensing Program Manager, Lorelei Williams, “Temporary Certificates of Occupancy are required for events that are in buildings or in enclosed areas that are wanting to place more people inside those areas than it’s originally designed for.” This includes events where the applicant wishes to use their building but also wants to expand their occupancy to include an adjacent outside area. It also includes closed areas that are open to the sky.
An area inside a building is obviously indoors, but what is the City’s definition of a closed area that is open to the sky?
According to Licensing Program Manager Lorelei Williams in her 5/30/17 email to Riverwest neighbor Patrick Griffiths, the concerts at Century Center take place in an “Outdoor space”:
“Occupancy of Outdoor space is not regulated by the Building Safety Division (BSD) or Oregon Structural Specialty Code (OSSC).” “The occupancy limit is determined utilizing table 1004.1.2, Assembly without fixed seats, using the appropriate load factor. The (Century Center) courtyard is approximately 8400 square feet, the occupant load for a concert would be 1200 with non-fixed chairs, could be greater for standing room only.”
According to Building Division Manager Joe McClay the building code defines a court or courtyard as an enclosed area “open to sky and closed on three or more sides.” Joe McClay went on further to state, “You need distances between buildings to be a separate building. If you are one inch apart we’re going to consider you one building. And that again … that’s straight building code, that’s not my opinion or anything. I’m thinking of Century Center and they’re pretty well connected. They’re real close. They got a roof covering it … and um … GoodLife may be considered a separate building but that courtyard is enclosed by three or more walls and it is a court defined by the building code.”
So Building Division Manager Joe McClay said one thing … Licensing Program Manager, Lorelei Williams said something else … and they were both speaking at the same Council meeting. So what is indoors, enclosed, and outdoors according to the City? Apparently it depends:
Century Center – According to Joe McClay the GoodLife Brewing building at Century Center is a separate building. We agree. It is separated by more than the width of a street lane from the main building of the complex. The Volcanic Theatre Pub building to the immediate west of GoodLife’s building, and across the parking lot used for the concerts, is also separated from the main building to its south by another space more than wide enough to drive a car through. On the Century Center’s far west side is yet a fourth building, also separated by a paved thoroughfare the width of a street. Based upon Mr. McClay’s own conclusion concerning the GoodLife building, all four of these buildings are “separate”. Therefore, Century Center’s concert area is open to sky and not “closed” on three or more sides. Century Center’s concert area should not be defined as one location nor should it be required to file TCOs. Yet that is exactly how the City of Bend is defining it.
Athletic Club of Bend Concert Series – The grassy lawn concert area in the interior of the ACB complex is “open to sky” and completely “closed on three or more sides”. The majority of the concert space’s eastern flank egress is blocked by a black metal fence separating the concert area from a large pool area. It features one egress to the southeast down a slight hill of grass and gravel, plus an alley type exit between two buildings not as wide as the exit spaces between the buildings at Century Center. No constructed ADA exits exist for the ACB concert area. ACB concerts also make use of the main building as concert goers pass through it to present tickets and gain entry. This is not the case with Century Center whose concerts make no “use” of buildings on the premises at all. Never the less, the City considers the ACB space to be outdoors and not subject to TCO filing. Joe McClay – Building Division Manager stated that ACB is “already set up for that assembly” and has “the amount of ingress and egress needed in case of emergencies.” Clearly Mr. McClay’s analysis of Century Center and ACB cannot both be true.
Oregon Spirit Distillers – OSD hosted its first concert in the summer of 2018 featuring rising Country star Russell Dickerson. Much like Century Center, the concert space for Oregon Spirit Distillers is framed by three separate buildings. As with Century Center the stage also occupies one end of a parking lot in-between those three buildings. As is the case with Century Center, the OSD site also features a tasting room adjacent to the venue area and a small plaza. While Century Center has two ADA ingresses/egresses built to code; OSD does not. During concerts, Oregon Spirit Distillers also does not have it’s own off street parking area. Century Center has significant parking available on the building area’s eastern flank. Never the less, like with ACB, the City defines OSD as an outdoor space and not subject to TCO filing.
The Downtown Plaza at Crows Feet Commons – The concerts on the plaza at Crow’s Feet Commons are made possible by an agreement between Crows Feet Commons and the City of Bend. During these concerts the Crows Feet Commons building remains open and integral. By the City’s own explanations and definition of code, this “use” clearly falls under the requirement for a TCO as it is an “event that’s going to be in an enclosed area or building that’s wishing to exceed their already permitted maximum occupancy.” Like OSD and ACB Crows Feet Commons is not required to file a TCO. Recently GoodLife Brewery was required and then denied a TCO to make use of their plaza outside their tasting room for an event planned for April 20th. How could this not be considered an uneven application of policy … code … and therefore discriminatory?
If ACB, or OSD are considered outside spaces not subject to Temporary Certificates of Occupancy, then the City should also consider Century Center to be an outdoor space. If GoodLife Brewing Company is required to apply for a TCO to expand to the adjacent plaza then so should Crows Feet Commons. If not, the City is selectively applying definitions that trigger a TCO and is therefore acting in a discriminatory manner.
Is it true that multiple businesses under one roof, or in a business complex where the buildings are deemed “real close”, will now be considered one “location” where obtaining TCOs are concerned?
For example: Century Center is actually comprised of 6 separate buildings; 9 tax lots; and 18 tenants. Most of the buildings are separated by the width of a road. The City argues that Century Center constitutes one “location”. Joe McClay defines it this way: “You need distances between buildings to be a separate building. If you are one inch apart we’re going to consider you one building. I’m thinking of Century Center and they’re pretty well connected. They’re real close.” Using Century Center as the example, the new City-wide policy of 1-3 TCOs per year per “location” is meant to apply to the entire annual allotment for all 18 tenants comprising Century Center plus the concert series produced by Bend Radio Group. Beyond it’s obvious crippling nature for cultural enterprise at Century Center, this definition of “location”, combined with a policy of 1-3 TCOs per location applied across an entire city, will have the equivalency of a City wide restraint of trade on enumerable businesses operating from various campuses now considered one location by the city.
So “location” lacks clear definition and is being arbitrarily applied?
That is correct.
And the City also has no clear definition of what constitutes a “closed” space on three or more sides?
Either this is true or the City is arbitrarily choosing whether or not to follow it’s own definition: “open to sky and closed on three or more sides.”
Does the City understand it has a legal obligation to create well defined policy and apply it fairly?
Joe McClay, Building Division Manager and, according to City Councilors, the ultimate and sole arbiter of this policy understood clearly the City’s legal obligation to non discriminatory and fairly applied policy when he stated, “What you do for one you have to do for all.”
At the February 21st meeting the Council also understood the City’s legal obligation to apply non discriminatory and fairly applied policy in order “to make sure the City’s regulation efforts are consistent and can mature along with that growth.”
Who will be responsible for enforcing this policy?
In the same City Council meeting on 2/21 the City stated the “Building Official, through this (policy), will retain his discretion and authority”. “The issue of TCO permits are discretionary of the Building Official. So it is ultimately his call.”
Councilor Abernethy in clarifying the new policy stated “it’s 2-3 (TCOs) but we actually give Joe (McClay) the discretion. If he thinks it can go higher than three, he has the ability to do that.”
Mr. McClay went on further to say, “It’s my decision. I can say no to them all or I can say yes to them all and I’m comfortable with three per year.”
Concerning Century Center concerts specifically, Mr. McClay stated “It (concerts at Century Center) is a temporary change of use and so we have the ability or I have the ability to say yes or no.”
Whose “idea” was it to limit TCOs to between 1 and 3 per “location” in the first place?
Concerning how the number of 1-3 TCOs per year were arrived at, Mr. McClay responded this way: “Portland allows 12 per year, one per month. “They are Portland and they are well funded”. “We can do it but we need probably a little more man power.” “The idea that I come up with is about three per year.”
So Councilors Moseley, Abernethy, Livingston, and Mayor Roats passed a massively impactful city wide policy based in part upon Joe McClay’s “idea” of things? Surely the City must have conducted an economic impact study on the affects of such a far reaching policy?
No they did not.
The concerts and the events Bend Radio Group produces at Century Center have donated well over one hundred thousand dollars and more than a half a million dollars in marketing to the non profits they support. What is the over all local economic impact? Conservatively speaking, over two million dollars a year. By way of comparison, according to the 2014 Sisters Folk Festival the estimated economic impact of 3700 attendees was over 1.5 million dollars. Now get out your calculators, put on your thinking caps, and consider the economic impact to our community from everyone who creates the culture that is Bend. It is staggering. To not field an economic impact study prior to creating policy that will have a major impact on a critical aspect of our economy and culture is completely irresponsible.
If the City didn’t conduct an Economic Impact Study, What data or research did the Council use to make its decision?
In the late summer early fall of 2017 the City and Council contracted for a Crowd Sourcing Study of residents within a 1000 feet of Century Center. They also conducted an Event Survey in early 2018.
Regarding the Crowd Sourcing Study, in it’s Final Assessment, “Few respondents identified music related noise as a high priority need to address”. The study also noted the “positive impressions of local events & businesses” at Century Center.
Concerning the recent 2018 Event Survey – Lorelei Williams, Licensing Program Manager stated that she – “Made that survey available to the public for a little over three weeks. Sent specific invitations out to businesses who had applied for a noise variance permit, or a TCO in the last three years.” However, many in the music and event industries including the very applicants producing entertainment at Century Center never received that invitation. According to Lorelei Williams, Licensing Program Manager for the City, here are the results of the “Event Survey”:
Noise Variance Permits – “141 people support the staff recommendation to keep the noise ordinance as is and 55 oppose.” “We don’t see a need to open up the code or make any changes”.
Recommendation requiring a parking plan through liquor license reviews – “90 support 84 oppose. Staff is rolling back their recommendation (to require a parking plan) at this time. People didn’t want to see these events on private property that are temporary and temporarily displacing parking be over regulated.”
TCO permit recommendation limiting to 2-3 per location per year: “We had 73 people support our recommendation outright and 141 oppose it.”
The City accepted the will of the people concerning noise but overrode the same when those surveyed responded overwhelmingly against changes to the TCO policy. Lorelei Williams cited respondent “confusion” on the TCO question as reason to over ride a 2 to 1 majority against, but offered nothing to support that conclusion; all the more perplexing when one considers that the City posted educational information and help on the issues along with the questions in the very same Event Survey. In the case of their own Crowd Sourcing Study the City ignored their own results and conclusions entirely. Finally, during Councilor Moseley, Abernethy and Livingston’s visit to the Riverwest Neighborhood Association meeting on 11/16 the issue of Century Center, noise, or any other related concern was never even brought up by residents.
That was the extent of research done for City wide policy of this magnitude?
That’s it. And to add insult to injury, as previously illustrated, the City didn’t follow the results from their own outreach efforts.
As it currently exists, how can this possibly be good City policy that will be uniformly applied?
According to the City of Bend, City Councilors, and the enforcing city agent – Mr. McClay – this is a policy that is open ended and subjective in its application and enforcement. The policy’s interpretation, application, and enforcement are vested squarely in the hands of Mr. McClay. Furthermore Mr. McClay is left to himself to define what is “inside” and “outside”. Even “location” lacks clear definition and, as such, is left to the interpretive discretion of Mr. McClay. Under these circumstances and with “funding” and “man power” admittedly lacking according to Mr. McClay, can anyone reasonably conclude that this poorly conceived policy will be uniformly, properly, and fairly interpreted and applied across this City by one person? Of course not. In his dissent Councilor Boddie summed it up best, saying making code this way “is not really what Council is suited to do” and “We shouldn’t be writing code on the fly like this.”
What’s at stake here.
Please understand. Those of us producing concerts and entertainment at Century Center are all about intelligently designed and fairly applied policies that manage growth and culture for the good of our entire community What we are against is poorly constructed policy, “behind the scenes” dealing, and big government attitude in our small town which discriminates against business and that places policy interpretation, application, and enforcement squarely in the hands of one, under supported, City employee. While we don’t pretend to speak for the Bend cultural community as a whole, we believe the majority feels the same way. We also believe the cultural community recognizes this policy, if allowed to take root, will drastically limit organic events, concerts, fundraising efforts, and culture of all kinds across our city; seriously affecting the depth and breadth of the very lifestyle that has been such a key ingredient to Bend’s desirability and livability. From Show Us Your Spokes at Parilla to live music at Spoken Moto … Tumalo Creek Kayak and Canoe’s Pickin’ and Paddlin’ to concerts at Crowsfeet Commons … much we value will be negatively affected. Musicians and Artists will suffer. Jobs, job hours, and opportunity will be affected. Businesses of all kinds will lose revenues. Should artist bookings along with performances be unduly consolidated geographically and in the hands of a chosen few, the Bend we know and love will be harmed. This is not how the City of Austin grew SXSW or became the live music capital the world. This policy is not the path to grow Bend’s authentic culture. Those who risked much to create the vibrant and authentic lifestyle that is Bend must not stand idle. Our concerns are not “laughable”, Councilor Abernethy.