Eugene Planning Commission <br />September 18, 2015 . <br />Page 3 <br />2. Attempt to Introduce New Evidence and Argument. <br />On Monday, September 14, 2015, ten days after the close of the evidentiary <br />record, and three days after Oakleigh Meadow Co-Housing's final written argument, <br />attorney Kabeiseman attempted to introduce new evidence and argument to respond <br />to OMC's responsive materials? The City has properly stricken this evidence. <br />As is set forth above, the Planning Commission" established an open-record <br />period that afforded the parties the opportunity to provide additional evidence, and <br />responsive evidence. Neither" the applicant nor the appellant was afforded an <br />additional opportunity to provide responsive evidence to the responsive evidence, nor <br />is it appropriate to expand or alter the open-record sequence to provide it now. <br />0 <br />While state law requires local governments to allow parties to provide evidence <br />that is responsive to "new evidence" in the record, it does not allow for serial re- <br />opening of the record to respond to responsive testimony and evidence. Wetherell v. <br />Douglas County, 56 Or LUBA 120, 127 (2008)("there is no unlimited right to rebut <br />rebuttal evidence, and Fasano does not require endless opportunities to rebut rebuttal <br />evidence.") (quoting Rice v. City of Monmouth, 53 Or LUBA 55, 60 (2006) aff'd 211 Or <br />App 250, 154 P3d 786 (2007)). Were, as here, the appellant has clearly been afforded <br />the opportunity. to submit both evidence and responsive evidence and argument, it is <br />not entitled to another opportunity after Oakleigh Meadow Co-Housing's final written <br />argument to expand its prior presentations. <br />Conclusion <br />As Mr. Kabeiseman has failed to provide any basis for either: (1) striking <br />Oakleigh Meadow Co-Housing's materials; or (2) expanding the open-record sequence <br />to introduce argument and evidence which is responsive to Oakleigh Meadow Co- <br />Housing's responsive materials, his motions should be denied. <br />ZPM / gc <br />cc: Clients <br />Very truly yours, <br />HUTCHINSON COX <br />P. Mittge <br />z Significantly, while Mr. Kabeisman complains that his client could not respond to the <br />evidence submitted on August 31, 2015, he does not try to respond to the evidence <br />introduced on that date. Instead, he seeks to introduce evidence and argument to <br />respond to the responsive evidence on September 4, 2015. <br />0 <br />345 <br />465 <br />