LUBA 076/077 VOL 2 of 2 - Laserfiche WebLink

Attachment 5 • 1 were compiled to assist the decision-maker with regard to detailed 2 measurements and data that are critical to determine the accurate net density." 3 Neighbors' Reply Brief 1. 4 LUBA's review is limited to the record filed by the local government. 5 ORS 197.83:5(2). Portions of the two appendices are not included in the 6 record, and based on Neighbors' reply, they appear to be offered for their 7 evidentiary value. The city's motion to strike the portions of Appendices 2 and 8 3 not included in the record is granted. With regard to striking the portions of 9 the petition for review that the city contends relies on those appendices, LUBA 10 disregards any allegations of material fact that are not supported by the record. 11. However, a lack of evidentiary support for arguments and factual allegations in 12 a response brief is not a basis for striking those portions of the brief. Hammack .13 & Associates, Inc. v. Washington County, 16 Or LUBA 75, 78, aff'd 89 Or App • 14 40, 747 P2d 373 (1987). 15 Where EC 9.7655(3) requires that the issues to be raised in a local appeal 16 must be stated in the notice of local appeal, those issues must be identified in 17 the local notice of appeal or the issues are not preserved for review. Miles v. 18 City of Florence, 190 Or App 500, 510, 79 P3d 382 (2003) (a parry may not. 19 raise an issue at LUBA if no party specified the issue as a basis for appeal 20 before the local appeal body). Neighbors do not respond to the city's 21 exhaustion waiver argument. We agree with the city that absent any showing 22 that Neighbors raised the issue of the-accuracy of the city's calculation of the 23 total acreage included in the subject property in their appeal statement to the 24 planning commission, that issue may not be raised for the first time. at LUBA. • Page 11 PC Agenda - Page 117 601