The Deschutes County Commission appears to be moving toward denying an application for a retail marijuana store in Tumalo.

During deliberations on Wednesday, two of the three commissioners cited lack of access and community compatibility issues as reasons to deny the 1,500- square-foot shop.

The discussion occurred after months of controversy over what would be Tumalo’s first retail marijuana outfit.

Mike Hayes, the owner of the Bend-based recreational dispensary Miracle Greens, submitted an application for a new marijuana storefront, along with an adjacent farmer’s market and food cart on the west side of U.S. Highway 20 in Tumalo, in July.

After an initial public hearing late last year, a hearings officer formally approved the application in January. But the decision was appealed in February by Joel and Julia Gisler, who argued the store could not be legally accessed without using an easement across their nearby property, among other issues.

In the initial approval, the hearings officer gave one condition: Hayes expand the width of the driveway on the Gisler’s property to 24 feet, which would meet county code. The driveway is the only way to the proposed marijuana shop.

But the terms of that easement are disputed. Gisler’s attorney has argued he could be liable for anything that happened on a driveway that is connected to an operation that remains illegal at the federal level. Gisler contends he can object to how the easement is used — a point Hayes disputes.

Without Gisler’s permission, there would be no access to the proposed business.

“If (Hayes) doesn’t have an access agreement, I don’t see how they can have a marijuana store there,” Commissioner Phil Henderson said.

Henderson and Commissioner Patti Adair argue that Hayes’ intention to deliver his product to rural areas is incongruent with what kind of business is allowed in the Tumalo Commercial District. They also found the business was overall “not harmonious” with the character and development of Tumalo. A Spanish tutoring center that was discussed in March as a potential reason to deny the shop, was not considered Wednesday.

But Commissioner Tony DeBone called the application “black and white,” and took issue with the other two commissioners appearing to search for reasons to deny the application that are based on moral objections rather than land use issues.

“If it’s the intention of the other two commissioners to look for reasons to deny this, I’m not going to have much more to say,” DeBone said, later adding that he supported the decision of the public hearings officer.

Hayes feels that Henderson and Adair are forming their opinions out of bias, not out of county code.

“After a year and a half of doing the due diligence, crossing every ‘t’ and dotting every ‘i,’ it’s disheartening to see two commissioners be so biased,” Hayes said Thursday. “There was a 59-page response from the hearings officer on why it should be approved. That just says it all.”

Hayes said he feels it is not up to the commissioners to decide whether the easement is legal or nonlegal for cannabis, and takes issue with the characterization of his plan to deliver marijuana to people’s homes.

The point of delivery was to help curb black market sales of marijuana in rural parts of the county that don’t have easy access, he said.

“They made it to be like some Amazon distribution center. We are talking one or two deliveries a day,” Hayes said.

A formal decision will be written and voted upon in two weeks. If the application is denied, Hayes said he will likely go to the Land Use Board of Appeals.

— Reporter: 541-633-2160, bvisser@bendbulletin.com

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