ER-10 <br />1 supported by substantial evidence in the record and is inadequate. ORS <br />z <br />2 197.835(9)(a)(C); ORS 227.173(3). <br />3 A. Motion to Strike/Waiver <br />4 Neighbors include in Appendices 2 and 3 to the petition for review a <br />5 number of documents that are not included in the record. The petition for <br />6 review relies on those extra-record documents to support Neighbors' argument <br />7 that the planning commission's decision that the PUD meets the net density <br />8 requirements is not supported by substantial evidence in the record. <br />9 The city moves to strike the portions of Appendices 2 and 3 that are not <br />10 included in the record, and any argument that relies on those appendices. The <br />11 city also argues that an issue that Neighbors raise in their first assignment of <br />12 error that alleges that the total acreage of the subject property is less than 2.3 <br />13 acres was not raised in the appeal statement to the planning commission, as <br />14 required by Eugene Code (EC) 9.7655(3), and therefore Neighbors are <br />15 precluded from raising that issue for the first time at LUBA.S <br />16 Neighbors do not really dispute that the documents included in <br />17 Appendices 2 and 3 are not included in the record but respond that the <br />18 documents are "based upon the actual record (with references included) and <br />s EC 9.7655(3) provides that for an appeal of a hearings officer's decision: <br />"The appeal shall include a statement of issues on appeal, be based <br />on the record, and be limited to the issues raised in the record that <br />are set out in the filed statement of issues. The appeal statement <br />shall explain specifically how and hearings official or historic <br />review board failed to properly evaluate the application or make a <br />decision consistent with applicable criteria. The basis of the <br />appeal is limited to the issues raised during the review of the <br />original application." <br />Page 10 <br />000059 <br />