Mr. Ken Helm <br />November 8, 2013 <br />Page Six <br />The onlyplace either letter identified an issue or evidence to which the new right-of-way <br />documents were a response was the following in the Access Engineering letter: <br />“Mr. Conte asserts that Oakleigh Lane is classified as an ‘access lane’ because the right- <br />of-way is 20 feet north of the centerline implying that the total right-of-way was <br />planned to be 40 feet in width.” <br />As demonstrated above, the “issues” of Oakleigh Lane’s classification and existing right-of-way <br />were not new. <br />The only evidence pointed to is “the right-of-way is 20 feet north of the centerline.” The <br />evidence in the two letters was clearly in response to and directed at challenging this particular <br />fact. <br />However, as demonstrated in my October 25, 2013 letter this fact was introduced at least as <br />early as the “Applicant’s Written Statement,” dated June 14, 2013. The issue was also <br />addressed extensively in the Eugene Planning Staff Report, dated September 2013 (pages 7, 8, <br />12, 13, 14, 15, 18, 31 and 38) and the report called out the applicant’s own prior evidence <br />related to this issue.The issue was also addressed extensively in the Eugene Public Works <br />Referral Response, dated September 17, 2013 (pages 2, 3, 5, 7, 10, 17 and 20). The report <br />confirmed the current Oakleigh Lane right-of-way: “The existing right-of-way in Oakleigh Lane is <br />20’ ...” <br />The applicant’s last-minute submission of documents related to Oakleigh Lane’s right-of-way <br />were notin response to any new evidence in my October 9, 2013 testimony – the applicant’s <br />evidence was actually in response to his own prior evidence about Oakleigh Lane’s right-of-way, <br />12 <br />which I had merely referenced in my arguments. <br />Subsequent to October 9, 2013, the applicant was entitled to present further argument in <br />response to my arguments regarding Oakleigh Lane, but not newevidence of right-of-way <br />dedications. It’s important to note that the evidence I relied upon was clearly available to the <br />applicant for weeks prior to the October 9 deadline for any new evidence; and thus, the <br />applicant had every opportunity to introduce additional evidence regarding other right-of-way <br />dedications up through October 9. Instead, the applicant chose not to introduce new evidence <br />regarding right-of-way dedications until the last day on which opponents could submit <br />testimony, thus depriving opponents of any opportunity to evaluate and respond to the new <br />evidence. <br />12 <br /> In his order, the Hearings Official did not identify anynew evidence to which the applicant’s testimony was <br />responsive, relying instead entirely on generalities, such as “Mr. Conte's submission, Exhibit PT-4, and Ms. <br />Lauren Regan’s comment at Exhibit PT-2 are long, detailed, and extensive comments touching almost all criteria <br />applicable through EC 9.8320” and “opponents took the opportunity to comment on a multitude of issues <br />including traffic, stormwater, screening, setbacks, the designation of Oakleigh Lane, the proposed right-of-way <br />and dedications, and Willamette River Greenway issues.” Being “long,” “detailed,” “extensive” and commenting <br />on a “multitude of issues” have no bearing at all on the statutory requirement that the applicant’s testimony <br />was required to be in response to “new evidence.” <br /> <br />