( Eugene Planning Commission. <br />September 18, 2015 <br />Page 2 <br />The opponents are now seeking to both: (1) strike Oakleigh Meadow Co- <br />Housing's submission of September 4,2015; and (2) submit additional evidence and <br />argument in response to those materials. This is nothing more than an attempt by the <br />opponents to remove materials from the record that support approval of the - <br />application, and to interject evidence and argument after the close of the record. It is <br />in direct violation of the Planning Commission's open-record sequence and state law, <br />and must be rejected. <br />1. Motion to Strike <br />Attorney Kabeiseman's September 9, 2015, motion to strike "the material <br />submitted by the applicant on September 4, 2015" based on his client's alleged <br />"understanding" that "rebuttal was limited to argument and not new evidence" is not <br />credible. The Planning Commission did not impose any such limitation. <br />In fact, Mr. Kabeiseman was directed to the Planning Commission's <br />deliberations on-line, wherein both the Commission and staff indicated that all parties <br />would be provided with an opportunity to respond to the new evidence submitted on <br />August 31, 2015 that would extend through September 4, 2015 as part of a standard "7- <br />7-7" open-record sequence. This was the open-record sequence described by Planner <br />Gabe Flock, and adopted by Commissioner Barofsky in making his motion. Moreover, <br />to the extent that there was any question on this matter, the City attorney's office <br />plainly specified that "evidence in response to those submittals are due by close of <br />business on September 4'." There was no lack of clarity here.' <br />. Moreover, to the extent that the appellant elected not to submit responsive <br />evidence, that does not alter the Planning Commission's open-record sequence or <br />require the rejection of materials submitted according to it. Oakleigh Meadows Co- <br />Housing properly provided materials on September 4, 2015 that responded to the <br />evidence and argument advanced by the opponents on August 31, 2015. These <br />materials are properly included in the record, the appellant's confusion <br />notwithstanding. <br />Kabeiseman makes much of the Planning Commission's choice of the word <br />"rebuttal" iri referring to the response period, and urges that the same is equivalent to <br />the applicant's "final written argument" under ORS 197.763(6)(e). However, it does <br />not have this meaning. See ORS 197.763(6)(a)(allowing parties to "present and rebut <br />new evidence" at a continued hearing). The reference to "rebuttal" clearly limited the <br />parties to "rebuttal" evidence and argument that was responsive to the materials <br />submitted during the first open-record period. However, nowhere did it expressly or <br />implicitly limit the parties to argument only. <br />344 <br />464 <br />