2 <br />3 <br />4 <br />5 <br />6 <br />7 <br />8 <br />9 <br />14 <br />11 <br />12 <br />13 <br />14 <br />15 <br />16 <br />17 <br />18 <br />19 <br />20 <br />21 <br />22 <br />23 <br />24 <br />25 <br />CRY OF EUGENE26 <br />CITY ATTORNEY's <br />OFFICE <br />125 E. 8" Avenue <br />Eugene, OR 97401 <br />Phone (541) 652-8447 <br />Fax (541) 5825414 <br />words, the City need not independently determine whether the proposal <br />provides a safe and adequate transportation system. If subsection (a), (b) <br />and (c) are complied with, then subsection (5) is satisfied. That said, much, <br />if not all, of Intervenor Conte's, arguments under his first assignment of error <br />rely upon undocumented assertions of safety concerns. <br />a. Motion to Strike <br />LUBA's review of the challenged decision is limited to the record. <br />ORS 197.835(2). Intervenor has included in an appendix to his brief a <br />document that appears not to be part of the record. See Intervenor-Petitioner <br />Conte's Amended Petition for Review, Exhibit A. Intervenor asserts that the <br />document is "based solely on evidence in the record." Id. at 4. However, he <br />does not indicate how that fact justifies including it in the brief, despite the <br />fact that it was not included in the record. LUBA's ability to accept <br />demonstrative exhibits, even where allegedly based on evidence in the <br />record, is extremely limited. NWDA v. City of Portland, 47 Or LUBA 533, <br />537 (2004). In any event, neither the exhibit nor the brief identifies where in <br />the record the information that informs the graphic can be found, so it is <br />impossible (or at least extremely difficult) to determine the accuracy of the <br />information. Accordingly, the City moves to strike Appendix A and any <br />"The very structure of EC 9.8320(5) does not require an applicant to <br />prove that a proposed development will be safe from any and all <br />asserted and or ima ined traffic safety threats. The language of EC <br />9.8320(5) states: ` t]he PUD provides safe-and adequate <br />transportation systems through compliance with the followin : ' The <br />underlined section demonstrates t a t e provision is imite its <br />own words to a requirement showing three things: a)) that EC 9.6800 <br />through 9.6875 can be met b) that pedestrian, bicycle and transit <br />circulation can be achieved and c) that if necessaryy a Traffic Impact <br />Analysis has been done anJ mitigation provided. In other words, the <br />adopted provisions of EC 9.8320(5) assume that if those three criteria <br />can be met, a `safe and adequate transportation system' will result." <br />Rec. 44 (emphasis in original). <br />Page 6 - BRIEF OF RESPONDENT <br />