PC-5 October 25 2013 Conte Re-open Record Request

Mr. Ken Helm October 25, 2013 Page Two week would allow evidence related to any “materials”already in the record no matter when the “materials” were introduced or whether the “materials” comprised argument or evidence.) Statutes allow only for response to new evidence in the first week ORS 197.763(6)(c) states: If the hearings authority leaves the record open for additional written evidence, arguments or testimony, the record shall be left open for at least seven days. Any participant may file a written request with the local government for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the hearings authority shall reopen the record pursuant to subsection (7) of this section. Thus, the statute makes clear that the only testimony of any sort that would be allowed in the second week (in this case) is testimony responsive to new evidence submitted during the first week. However, the applicant’s additional evidence submitted in the second week was not responsive to either a new issue or new evidence submitted by opponents during the first week. Impermissible evidence related to Oakleigh Lane’s right-of-way The issue of Oakleigh Lane’s right-of-way was introduced at least as early as the “Applicant’s Written Statement,” dated June 14, 2013. The applicant’s own findings described Oakleigh Lane as having a 20-foot right-of-way: “Findings: The existing conditions of Oakleigh Lane provide a 20-foot wide Right of Way with no sidewalks along the entire street.” (page30) The issue was also addressed extensivelyin the Eugene Planning Staff Report, dated September 2013 (pages 7, 8, 12, 13, 14, 15, 18, 31 and 38). This report calls out the applicant’s own evidence related to this issue: processed, for lack of a better word, through all appeals, including an appeal to the Planning Commission. ... If we get new evidence in the second week that needs to be responded to, then I have to open the record and that throws the schedule into disarray. So I highly encourage folks to submit argument only in response ending October 16. OK. And, effectively, public participation in the written open record period will end October 16. The applicant will have until October 23 to submit final comment. That’s an allowance that is demanded by state law and given the applicants again because they bear the burden of proof to demonstrate compliance with the criteria. So with those open record dates stated, submissions can be made either in hard copy to the City by 5:00 p.m. at the City offices or by e-mail to staff. OK. And then do not send stuff directly to me; I don’t even think my e- mail address has been revealed anywhere. But it needs to go through staff. Staff keeps the official record, and that ensures folks can come in and look at the full record during the open record period so that you can keep current on what’s already been submitted. OK. So everybody send stuff to staff, and I will eventually get it after the record closes.”