Mr. Ken Helm <br />November 8,. 2013 <br />Page Seven <br />It is the applicant's obligation to adequately identify the alleged new evidence in testimony <br />submitted when the record was left open and demonstrate that it constitutes new evidence not <br />in the record.13 Applicant has not met that obligation. <br />Oakleigh Lane's current right-of-way width has a direct bearing on the road's capacity to handle <br />the projected vehicular, pedestrian and bicycle use. The possibility that the current right-of-way <br />may be required to be widened because of the projected impacts from the proposed PUD has a <br />direct bearing on the off-site impacts on other residents who live on Oakleigh Lane. Thus, the <br />applicant's new evidence,.if allowed, would potentially affect findings regarding approval <br />criteria at: EC 9.8320(1), EC 9.8320(5)(a) and (b), EC 9.8320(6), EC 9.8320(11)(b), EC 9.8320(12) <br />and EC 9.8320(13).. <br />The fact that the Hearings Official has incorrectly interpreted the requirements of <br />ORS 197.763(6)(c) and allowed the applicant to submit hundreds of pages of legal documents as <br />impermissible new evidence, which I and others have no ability to review for authenticity or <br />relevance, seriously prejudices opponents' substantial rights. <br />The Hearings Official must vacate or amend his previous order and strike the applicant's <br />impermissible evidence from the record. If he does not do so, and relies at all upon this <br />evidence for approval of the PUD application, the decision will be subject to remand on appeal, <br />based on procedural error. ORS 197.835(9)(a)(B) (LUBA may remand for procedural error that <br />prejudices the substantial rights of the petitioner.) <br />Sincerely, <br />PPaul T. Conte <br />1461 W. 10th Ave. <br />Eugene, OR 97402 <br />13 "]I]t is petitioners' obligation to adequately identify the alleged new evidence in the petition for review, <br />demonstrate that it constitutes new evidence not in the record * * City of Damascus v. Metro, 51 Or LUBA <br />210, 228 (2006). <br />418 <br />