G A R V Y <br />!SB1-j <br />Eugene Planning Commission <br />August 11, 2015 <br />Page 2 <br />Attorney has told the Commission, you are operating under EC 9.7655(2) which states that "no new <br />evidence pertaining to appeal issues shall be accepted." Mr. Trautman's letter dated July 27, 2015, <br />pointed specifically to multiple places in the record where the fact of pavement on private property was <br />documented, including in documents D-3, PT-4, PT.R-4, PH-1.13, and PG-53. In fact, the hearings <br />official's own decision, on page 18, specifically notes that a portion of the pavement is "outside the <br />public right-of-way." <br />It is thus indisputable that the "fact" that a substantial portion of the pavement was outside the right-of- <br />way was already in the record and the Planning Commission does not need to accept any new evidence <br />for that fact to be established. To the contrary, the Planning Commission cannot now ignore this <br />important fact that was presented to the hearings official but which the hearings official either <br />overlooked or ignored in his findings. <br />The second concern moves beyond the question of the facts and involves what issues are before the <br />Commission. The Oregon courts have long drawn a distinction between raising "issues" and making <br />particular "arguments." State v. Hitz, 307 Or 183766 P2d 373 (1988), ZRZ Realty Co. v. Beneficial Fire <br />and Cas. Ins. Co., 255 Or App 524, 300 P3d 1224 (2013). In particular, the courts require the raising of <br />a particular issue, but specifically note that a particular argument can and will evolve. The courts have <br />said that the question of whether a particular issue was raised is a "practical one"; whether an issue was <br />identified "with enough particularity" to assure that the error was understood and could have been <br />corrected." State v. Carlon, 265 Or App 390, 335 P3d 343 (2014). <br />The three appeal issues before the Planning Commission at this time are whether Oakleigh Lane <br />provides a "safe and adequate transportation system" (as required by EC 9.8320(5)); whether there <br />would not be any risk to public safety on Oakleigh Lane from additional traffic arising from the PU D (as <br />required by EC 9.8320(6)); and whether Oakleigh Lane meets the adopted street standards for the <br />anticipated traffic volume (as required by EC 9.8320(11)(b)). <br />There is no question that these issues were amply raised in testimony before the hearings official and in <br />the Appeal Statement. The Planning Commission must properly interpret these three approval criteria <br />and make its decision based on all relevant facts in the record. Mr. Trautman has presented arguments, <br />based on evidence in the record, to address these three appeal issues. His testimony has neither <br />introduced new evidence nor raised issues not in the Appeal Statement. Instead, Mr. Trautman has now <br />exercised precisely what he was denied before - the right to bring to the attention of the Planning <br />Commission an important fact overlooked or ignored by the hearings official. If the City had not <br />mishandled the original process, the Planning Commission could have benefited from Mr. Trautman's <br />testimony at the time and properly resolved the issues related to Oakleigh Lane. The Planning <br />Commission cannot repeat the City's mistake by denying Mr. Trautman his say. <br />The heart of the Appeal Statement turns on the inadequacies of Oakleigh Lane and the remedies that <br />would be required to meet the three criteria, including the acquisition of sufficient right-of-way and <br />• <br />I <br />i <br />I <br />i <br />i <br />i <br />49 <br />