Attachment A <br />Planning Commission <br />September 21, 2015 <br />Page 2 <br />Question #1: Can individuals other than Simon Trautman participate and submit <br />evidence or argument on their own behalf? <br />The Planning Commission clearly limited the open record period to the applicant and its <br />representative and Simon Trautman and his representative. The rationale for limiting the open <br />record to those parties is that, except for the landscape screening issue, the remand was only to <br />provide an opportunity for Simon Trautman to participate. City staff received numerous letters <br />from individuals other than Simon Trautman requesting that they be allowed to present evidence <br />and argument during the open record period. Some, if not all, of those individuals participated in <br />the local proceedings leading up to the LUBA appeal, and some were parties to both the LUBA <br />and Court of Appeals proceedings. They argue that a state statute provides that when a decision <br />maker re-opens the record to admit new evidence, the decision maker must allow "any person" to <br />respond to the new evidence. While there is case law that contradicts that reading of the statute, <br />it may not be worth the risk of a potential remand that could arise as a result of excluding their <br />testimony. My advice is to allow this testimony. Open Record ("Rec.") at 19, 24, 239-40. <br />Question #2: What evidence submitted on August 31 can the Planning Commission <br />consider? <br />On August 31, 2015, the applicant and Mr. Trautman submitted evidence and argument <br />that followed the direction of the Planning Commission with regard to the scope of the issues; <br />i.e., the materials deal only with the paving width issue. Accordingly, you can consider all of <br />those documents. <br />Question 43: What documents submitted on September 4 (second open record <br />period) and after can be considered? <br />Before' addressing this question, it is helpful to understand exactly what constitutes "new <br />evidence." The state statute provides a definition of the term "evidence." ORS 197.763(9)(b) <br />provides: <br />"'Evidence' means facts, documents, data or other information offered to <br />demonstrate. compliance or noncompliance with the standards believed by the <br />proponent to be relevant to the decision." <br />In most instances, where a party submits new evidence, or facts offered to demonstrate <br />compliance with a relevant approval criterion, the other side must have a chance to provide <br />evidence in response. That said, it is not possible for this back and forth to continue ad <br />infinitum. That is why decision makers often use the process that the Planning Commission <br />followed in this case. During the first open record period, both sides may present new evidence <br />and argument. In this case, that evidence and argument was to be limited to the issue of the <br />paving width of Oakleigh Lane. During the second open record period, the parties may present <br />only rebuttal evidence and argument that is responsive to the evidence and argument submitted <br />by the other side during the first open record period. The final open record period is generally <br />City of Eugene • 125 E. 8th Ave. • Eugene, OR 97401 • 541-682-8447 • 541-682-5414 Fax <br />www.eugene-or.gov <br />{00178804;1} <br />