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Tobacco drive-thru owner loses appeal

Jeremy Howard maintains that he has been treated with an unusually heavy hand because his business sells tobacco
News Editor
   Jeremy Howard, the respiratory therapist who owns a drive-thru tobacco shop at 61 S.W. 4th St., has lost the latest round of his legal battle with the City of Madras over his downtown business.
   The Land Use Board of Appeals recently ruled in favor of the city after Howard filed an appeal claiming city officials violated procedures and were biased in their revocation of his site plan.
   Since the future of his Madras Tobacco Company erupted into a legal dispute a year ago, Howard has maintained that city officials have been prejudiced toward him because of the nature of his business. In his brief to LUBA, he claimed his equal protection rights under the 14th Amendment had been violated. He said he belongs to a class of people that are proponents of tobacco use, and that his business was treated unequally because of it.
   "As aesthetically unpleasing as people might think my business is, it is exactly the same as three coffee shops in town," said Howard, who runs the business out of a trailer. "If anybody else had done those things they would have been more lenient with them. I doubt anybody would disagree with me on that, except the city councilors."
   City officials, however, say the issue has never been about tobacco, only conditional use violations related to landscaping, paving and signage.
   Madras City Attorney Bob Lovlien said LUBA's decision comes as no surprise and the city will now move to close down Howard's operation.
   "The city granted him a site plan, he was not able to complete the conditions of the site plan, and the city revoked it," Lovlien said. "The city is correct in what they did."
   Howard said he has no intention to appeal the decision to the Oregon Court of Appeals, but he doesn't plan to cease operation anytime soon.
   He said he has the right to reapply for a site plan, which he turned in two weeks ago.
   "I'm sure the city will find some way to deny it," Howard said. "And I'll appeal it again."
   In January 2000, Howard filed an application for a one-year temporary site plan for his modular building. The Madras Planning Commission and City Council approved it, subject to a number of landscaping and paving conditions.
   Howard opened his business in March of 2000, but by June was notified by the city that he was not in compliance with the site plan conditions. He was also notified that his two reader-board signs were not in compliance with the city's sign ordinance.
   In July of 2000, the Planning Commission granted Howard an extension to comply with the landscaping and pavement conditions, but he was still unable to meet those criteria, and the commission revoked his site plan in October. He appealed the decision to the City Council, which upheld the Planning Commission's decision, then Howard took the matter to the Land Use Board of Appeals.
   Howard had no legal representation and defended himself before LUBA in October. In addition to claiming his rights under the 14th Amendment were violated, Howard argued that the city committed procedural errors, that a former city councilor was biased and had prejudged the appeal before the council's hearing and that the city's decision was not supported by substantial evidence. His claims were all rejected.
   Howard concedes that he hasn't been able to meet the site plan conditions on the city's timeline, but says money is the main issue. He said the city has been unfairly heavy handed.
   "I tried my best to be compliant with things but sometimes they cost more money than you have," said Howard, who also noted that he didn't have the money to afford a lawyer.