Mr. Ken Helm <br />November 8,2013 <br />Page Four <br />Accordingly, testimony during the second week was limited by *statute to testimony that <br />"respond[s] to new evidence submitted during the period the record'v'vas left open." <br />The period the record was "left open," was the first week, October 2nd to 9th.7 Mr. Mittge's <br />attempt to interpret "during the period the record was left open" as encompassing time prior <br />to the first period established by ORS 197.763(6)(c) would rewrite the statutory language and is <br />without merit.8Such an interpretation would .for practical putposes eliminate the distinction <br />between the initial and response periods established by ORS 197.763(6)(c). <br />Thus' the threshold question is whether or not the applicant's new evidence of purported right- <br />of-way dedications, submitted during the second week, was in response to new evidence <br />submitted in the first week. <br />In this regard,- both the Hearings Official and Mr. Mittge misstate the statutory requirement. <br />The Hearings Official asserts that evidence that "respond[s] to issues, argument and evidence <br />submitted by the opponentsi9 can be submitted during the second week. <br />Mr. Mittge asserts: - <br />"the testimony and evidence that Mr. Conte complains of is responsive to testimony and <br />evidence that he and other opponents submitted * * * . Both Mr. Conte and Ms. Regan's <br />written submissions first introduced the issue of the classification of Oakleigh Lane on <br />October 9, 2013." <br />The statute allows evidence to be in during the second period only in response to <br />"new evidence," not in response to new "issues," "arguments" or any other form of <br />"testimony" otherthan evidence, as defined by ORS 197.763(9)(b). Both the Hearings Official <br />(Footnote 7 continued) Mr, Mittge's comment that "No-one objected to [the Hearings Official's] open- <br />record sequence at the public hearing * * has no legal bearing. The Hearings Official must follow the <br />statutes, and a party does not waive his right to challenge impermissible evidence just because he wasn't <br />present at the.public hearing. Furthermore, even an explicit agreement between the applicant and some <br />opponents regarding the additional time for submitting evidence into the record does not constitute any form <br />of waiver by a participarA who was not a party to such agreement. I raised this issue within hours of its <br />occurrence and have adequately preserved the issue for appeal. <br />7 At the public hearing, the hearings Official allowed: "an additional seven days (untilOctober16, 2013) for the <br />specific purpose of allowing responsive comment to issues raised during the initial seven-day period ending <br />October 9, 2013."- Order on pages 1 and 2. <br />$ Mr. Mittge actually used the term "during the open record period," which LUBA has used in numerous <br />decisions to refer to the first period established by ORS 197.763(6)(c). <br />"Second, the Hearings Official's schedule and the applicable statutes do not limit responsive testimony to <br />evidence submitted during the 'first week' in any case. Consistent with state law, all participants were <br />afforded the opportunity to submit evidence and testimony that was responsive to issues that were raised <br />during the open record period that ended on October 9, 2013." Page 2 of Mittge letter dated October 31, <br />2013. <br />9 Order on page 2. <br />415, <br />