PC-1 November 8 2013 Conte Objection

Mr. Ken Helm November 8, 2013 Page Three ORS 197.763(6)(c)requirements for evidence submitted in the second week The sole issue in this case is the statutory basis forthe Hearings Official’s second week and, accordingly, what kind of testimony was allowed during that week. The Hearings Official’s second week clearly was not based on ORS 197.763(6)(d). The question then is whether the Hearings Official’s second week was a lengthening of the initial ORS 197.763(6)(c) period or was instead a substitute for the ORS 197.763(6)(c) second(i.e., response) period. 3 LUBA has allowed that a “7-7-7” approachis acceptable, and that a written request is not required to trigger reopening the record for responsive testimony. Presumably, the Hearings Officials was attempting to follow such an approach by which the second week (October 10th 4 to 16th) would correspond to the response period established by ORS 197.763(6)(c). 5 The Hearings Official’s description of the second week was somewhat ambiguousand therules he stated didn’t clearly correspond to the provisions in ORS 197.763(6)(c). In any case, the Hearings Official does not have the authority to override statutes, and the second week in this 6 case must conform to thestatutory provisions upon which it’s based. 3 The “7-7-7” is a shorthand for three one-week periods in which the first and second weeks correspond to the first and third periods (above) as established in ORS 197.763(6)(c) and (d), and the second week anticipates a written request for response to new evidence in the first week and dispenses with the requirement that such a request actually be filed. 4 On the other hand, if the Hearings Official’s second week was intended to lengthen the initial ORS 197.763(6)(c) period, then the applicant’s new evidence was permissible, but the Hearings Official was required to grant my timely written request to reopen the record for a response. However, the Hearings Official has appeared to make clear this wasn’t his intent: “In addition, the Hearings Official did not close or reopen the record on October 9, 2013 as Mr. Conte appears to believe and argue. Therefore, ORS 197.763(7) is not independently applicable and does not represent a requirement to reopen the record pursuant to Mr. Conte's request.” Ibid. page 2. Although it is probably immaterial in this case because of the above, it should be noted that in citing Wetherell v. Douglas County, Mr. Mittge conveniently left out the part of LUBA’s decision that would apply in the present case: “While we generally agree with intervenor that petitioner had no right under Fasano to rebut intervenor’s rebuttal evidence, we would resolve the question differently if, during intervenor’s rebuttal testimony at the hearing or during the period that the record was left open, intervenor had introduced evidence that was not limited to rebuttal of the evidence that petitioner submitted at the February 15, 2007 public hearing. In that circumstance, petitioner would almost certainly have a right to respond to such new (non-rebuttal) evidence.” 5 “Then I’ll leave the record open until October 16th for responsive argument and evidence only. OK. That means no new issues out of the blue that didn’t come up in that first open record period, which ended the 9th.” – Hearings Official statement at approximately at 21:30 in the audio recording of the hearing. 6 LUBA has found that the Legislature drafted ORS 197.763(6)(c) and (7) “to allow ‘any participant’ to submit ‘new evidence, arguments or testimony,’ to ‘respond’ to any new evidence that was submitted during the ORS 197.763(6)(c) seven-day open record period.” Friends of the Hood River Waterfront v. City of Hood River (LUBA No. 2012-050)