Mr. Fred Wilson <br />March 17, 2017 <br />Page 5 <br />rules. Our hearing memorandum documents the city's experience with its storm water rule, <br />which it has taken through the acknowledgment process twice. <br />Our hearing letter also explains that the TIA Rule does not acquire "land use regulation" status <br />merely be being referenced in the text of the zoning code that was adopted before the Rule was <br />adopted. <br />The City has elected not to have the TIA Rule acknowledged. The City may shift gears and <br />pursue acknowledgment in the future. However, at this juncture the City may not apply the Rule <br />as a substantive standard in this proceeding because it is not a "land use regulation" in the <br />meaning of ORS Chapter 197. <br />2(b). If the TIA process is required to allow this use, then the TIA Rule is not a <br />source of substantive standards for this decision; it is just an information <br />requirement that is not relevant at this juncture. <br />Allegations of missing information are not a basis for a finding of noncompliance with the <br />substantive standards. Information requirements are not approval standards. <br />It is important to distinguish between information requirements and substantive standards for <br />review. The former are needed to get an application in the door at the City and in the review <br />process. The latter are applied to approve or deny the application. The TIA Rule has utility in <br />helping the city professional staff to exercise their professional judgment in setting the scope of <br />work for the TIA. The rule is not a basis for non-experts to second guess the judgment of the <br />city professionals. This point is elaborated upon in item 2 of our February 27 hearing letter. <br />Generally, allegations of missing information in an application are not a basis for remanding a <br />decision or denying an application under the substantive standards that apply. Our hearing letter <br />tracks the case law on this point, including a case involving the appellant Southeast Neighbors. <br />The Hearing Official should find, categorically, that the TIA Rule is all about information <br />requirements for the TIA; it is not a source of substantive standards that may be invoked to reject <br />a TIA as inadequate. <br />3. The scope of the TIA was adequate under the code and the TIA Rule. Items of <br />information alleged to be needed by the Rule but missing in the scope of work are not <br />needed because they are "excepted" under EC 9.8675 and R-9.8650-E. <br />The code and the TIA Rule recognize that setting the scope of work for a TIA is not a "one size <br />fits all" exercise. The Rule states a very long list of information is potentially needed to be <br />collected in a TIA. But the code and the Rule also allow the professional city staff to shrink the <br />list a bit, based on the circumstances. This is what the City staff did here, and they were fully <br />authorized to do so. This is more fully explained in item 1 of our February 27 hearing letter. <br />Opponents took issue with the smallest details of what was and was not included in the TIA, <br />disregarding the professional expertise and judgement of the technical experts City Engineers <br />