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ATT New Evidence Submitted During First Open Record Period
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ATT New Evidence Submitted During First Open Record Period
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Last modified
6/19/2015 4:11:17 PM
Creation date
6/18/2015 10:30:06 AM
Metadata
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Template:
PDD_Planning_Development
File Type
CU
File Year
14
File Sequence Number
3
Application Name
ATT AT CROSSFIRE
Document Type
Public Comments submitted after hearings official hearing
Document_Date
6/17/2015
External View
Yes
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I In order for the city to postpone a determination of compliance with an applicable <br />2 criterion to a future proceeding, the city must first determine, based on evidence in the <br />3 record, that "compliance with the approval criterion is possible." Gould v. Deschutes <br />4 County, 227 Or App 601, 612, 206 P3d 1106 (2009).6 In Gould, the Court explained that a <br />5 finding that compliance is "possible" is necessary in order to justify a local government's <br />6 decision to approve rather than to deny an application, where additional evidence is <br />7 necessary to make the required ultimate finding that the criterion is satisfied or will be <br />8 satisfied by measures that are "likely and reasonably certain to succeed. Id. at 610-612 <br />9 (quoting Meyer v. City of Portland, 67 Or App 274, 678 P2d 741, rev den, 297 Or 82 (1984). <br />10 According to the Court, the reason deferral must be justified by a finding that compliance <br />11 with an approval standard is "possible" is because if compliance is not possible there is no <br />12 point in deferring consideration of that approval standard: the application should instead be <br />13 denied. In other words, the purpose of finding that compliance is "possible" is not to <br />14 establish, even partly, that the application in fact complies or will comply with the approval <br />15 standard. The purpose is simply to rule out whether immediate denial of the application is <br />16 the more appropriate option. <br />17 The Court explained that the evidentiary showing that is required in order for the <br />18 local government to determine that future compliance is "possible" is not the same <br />19 evidentiary showing that will be required when a local government makes the required <br />20 ultimate finding that an approval criterion is satisfied or will be satisfied with measures that <br />21 are "likely and reasonably certain to succeed." Id. at 610. However, the Court did not <br />22 elaborate on what quantum or quality of evidence is necessary to support a mere finding that <br />6 For the reasons explained in Gould we do not use the word "feasible" in describing either the "possible" <br />finding that is required to defer an ultimate finding concerning an applicable criterion or the ultimate, deferred <br />finding that the criterion is satisfied or will be satisfied by measures that are "likely and reasonably certain to <br />succeed." Gould at 610 n 3. <br />Page 15 <br />
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