LEGAL BURDEN OF PROOF REMAINS ON THE APPLICANT <br />It would behoove the commissioners, particularly those commissioners who have demonstrated <br />a tendency to require the appellants to prove that Oakleigh Lane will be unsafe, to spend at least <br />a few minutes discussing and understanding the statutory burden of proof that falls only upon <br />the applicant, even during an appeal. If, after you have considered all relevant evidence and <br />arguments, there remains any uncertainty regarding whether or not the evidence would <br />convince a reasonable person that Oakleigh Lane would be safe, a commissioner is legally required <br />to find that the applicant has failed to satisfy their burden to prove the application complies <br />with the mandatory approval criteria. You cannot rely on findings that the appellants have not <br />"proved" their case, but instead must require that the applicant has proven that the application <br />complies. <br />In this case, there is no clear and convincing evidence in the record to be certain that Oakleigh <br />Lane will have (at least) an unobstructed, 20-foot right-of-way and 19 feet of pavement available <br />for public use for its entire length. And that was the assumed condition of Oakleigh Lane that the <br />Hearings Official (and Planning Commission) previously relied upon. <br />With evidence now proving that Oakleigh Lane can be obstructed by legally-parked cars and <br />that at least 250 feet of Oakleigh Lane has less than 16 feet of pavement width within the public <br />right-of-way, the Planning Commission must reject the analysis and findings of the Hearings <br />Official (and the prior Planning Commission) decision. <br />Reemphasizing: It is not in any way the appellants' burden to prove the right-of-way will be <br />obstructed or that the pavement won't be available for public use. If the Planning Commission <br />were to transfer the burden of proof to the appellants, there are a long line of LUBA and court <br />decisions that make it fairly certain an approval would be remanded. <br />Furthermore, the additional evidence submitted in this testimony will indeed demonstrate that, <br />even if there were an unobstructed 20-foot right-of-way and 19 feet of pavement available for <br />public use (and there is not), that condition would not meet adopted City Code and street <br />standards and would not come anywhere close to providing a safe street for emergency <br />vehicles. <br />My testimony of July 27, 2015 provides a thorough analysis of the legal requirements of the <br />mandatory approval criteria in EC 9.8320(5), (6) and (11)(b); and these arguments are not repeated <br />in this testimony. The following testimony focuses on the facts regarding the current condition of <br />Oakleigh Lane and the appropriate code, standards and guidelines for evaluating whether or not: <br />• Oakleigh Lane in its current condition would provide a safe and adequate street (as <br />required by EC 9.8320(5)); <br />• The additional traffic impacts arising from the proposed PUD would not be a significant <br />risk to public safety (as required by EC 9.8320(6)); <br />• The additional traffic would not be an impediment to emergency response (as also <br />required by EC 9.8320(6)); and <br />• Oakleigh Lane satisfies applicable standards for right-of-way and pavement widths (as <br />required by EC 9.8320(11)(b)). <br />Trautman Appeal Testimony PDT 13-1 Page 3 August 31, 2015 <br />28 <br />