Ken Helm, City of Eugene <br />Re: Open-Record Issue - Oakleigh Meadow Co-Housing, LLC <br />Page 2 of 3 <br />submitted by opponents during the first week." There are at least two <br />problems with his assertion. <br />First, the testimony and evidence that Mr. Conte complains of is <br />responsive to testimony and evidence that he and other opponents submitted <br />on the last day of the "first week" in the open-record period. Both Mr. Conte <br />and Ms. Regan's written submissions first introduced the issue of the <br />classification of Oakleigh Lane on October 9, 2013. Oakleigh Meadow Co- <br />Housing's responded to this new issue. The opponents cannot fault Oakleigh <br />Meadows Co-Housing for responding to their testimony and evidence during <br />the time set-aside for doing so. <br />Second, the Hearings Official's schedule and the applicable statutes do <br />not limit responsive testimony to evidence submitted during the "first week" <br />in any case. Consistent with state law, all participants were afforded the <br />opportunity to submit evidence and testimony that was responsive to issues <br />that were raised during the open record period that ended on October 9, 2013. <br />Hence, the responsive testimony and evidence was properly received <br />in accordance with the schedule established at the hearing on October 2, 2013. <br />Mr. Conte argues in the alternative that the record should be re- <br />opened pursuant to ORS 197.763(6)(c) to allow him to respond to evidence <br />introduced during the period for responsive evidence. We respectfully <br />request that the Hearings Official deny such a request. The schedule <br />established at hearing on October 2, 2013 already allowed for the open-record <br />period provided for in ORS 197.763(6)(c). It allowed all participants the <br />opportunity to provide responsive testimony and evidence in accordance <br />with ORS 197.763(7) through October 16, 2013. <br />Apparently, under Mr. Conte's view the invitation to introduce <br />responsive testimony and evidence under ORS 197.763(7) means that a party <br />can skin back a step to ORS 197.763(6)(c) and r p the r--Cord to respond <br />to the responsive evidence. However, the responsive testimony and evidence <br />is not "new evidence submitted during the period when the record was left <br />open" under ORS 197.763(6)(c). Instead, it is responsive evidence and <br />testimony introduced during a reopened record period. ORS 197.763(7) does <br />not allow for serial re-opening of the record to respond to responsive <br />testimony and evidence.' Wetherell v. Douglas County, 56 Or LUBA 120, 127 <br />' Arguably, it could be appropriate to re-open the record address new issues <br />that come "out of the blue" during the period set-aside for responsive <br />testimony, as these would not conform to ORS 197.763(7). However, Mr. <br />Conte does not identify any such unanticipated issues in the responsive <br />testimony and evidence, and there were none. <br />