Page 5 <br />September 6, 2016 <br />Valley River Inn identified those instances in which the Applicant and the City staff raised new <br />issues and/or evidence in Section B below. The Planning Commission cannot, and therefore <br />should not, consider these new issues and/or evidence as part of its decision. If the Planning <br />Commission were to consider or rely on these new issues and/or evidence as part of its decision, <br />it would be both a substantive and procedural violation that would result in a reversal or remand <br />from LUBA. <br />B. Response to Substantive Arguments. <br />1. The Applicant's argument regarding EC 9.2170(5)(d) and the street tree <br />standards must be rejected because it is based on new issues and evidence <br />that were not raised below. <br />It is clear from the Hearings Official's decision that the sole issue raised below regarding EC <br />9.2170(5)(d) and the street tree standards was whether or not these requirements applied to the <br />Application. Valley River Inn argued they were applicable. The Applicant argued they were <br />not, and as a result did not attempt to demonstrate compliance. The City staff did not respond to <br />this issue or take a position with respect to the parties' arguments. <br />After quoting EC 7.280(1), which defines when the street tree standards apply, the Hearings <br />Official resolved the issue as follows: <br />"The applicant points to the first emphasized language to argue that the policy, <br />and therefore EC 9.2170(5) (d), does not apply unless the development involves <br />the creation of a new street. According to the applicant, because the proposed <br />hotel does not involve the creation of a new street, no street tree standards apply. <br />VRI points to the second emphasized language to demonstrate that the policy <br />clearly contemplates situations involving streets that are not new being required to <br />comply with the street tree standards. I agree with VRI. The second emphasized <br />language seems to suggest that existing streets are also subject to the street tree <br />standards. Furthermore, EC 9.2170(5)(d) requires street tree standards for <br />commercial development in general - not just commercial development that <br />creates a new street. The [applicant] has not provided a street tree plan or <br />provided any evidence regarding compliance with this standard. EC 9.2170(5)(d) <br />is not satisfied." Hearings Official Decision, p.8. (Emphasis added). <br />The Hearings Official concluded that the street tree standards did apply to the Application, and <br />therefore the Applicant failed to demonstrate compliance because it did not even attempt to <br />address these standards. <br />On appeal, the Applicant abandoned its argument below and now argues for the first time that it <br />does comply or can comply with a condition of approval. The Planning Commission cannot <br />consider this new argument because it is a new issue the Applicant did not raise below. The <br />Applicant never argued or cited to any evidence below that it complied with the street tree <br />standards. Nor did it suggest it could comply with a condition of approval. It certainly did not <br />