In conclusion, there is simply no reliable evidence in the previous record that establishes <br />that fire trucks and other emergency vehicles can be ensured unimpeded access to the proposed <br />PUD via Oakleigh Lane. (This issue is discussed further in relation to EC 9.8320(7), below.) <br />LUBA'S FINDINGS DID NOT PROPERLY ADDRESS THE PLANNING COMMISSION'S PRIOR ERRORS <br />ON EC 9.8320(6) & CANNOT BE RELIED UPON BY THE PLANNING COMMISSION ON THIS REMAND. <br />Although the facts speak for themselves, the applicant will likely encourage commissioners to <br />look no further into the application's conformance with EC 9.8320(6) because LUBA did not <br />agree with the appellants ("petitioners") arguments made in the most recent appeal. That <br />would not only be abdication of commissioners' responsibility to the public that may be at risk <br />of harm, it also would put the City at risk of yet another remand. Regardless of what LUBA <br />may do on a third appeal, the Court of Appeals has not yet fully dealt with the substantive <br />errors that LUBA made.' <br />The commissioners' proper and prudent role on this remand is to look at LUBA's <br />evaluation, which itself was largely based on the false claims about City Council approving <br />paving only 14 feet wide as "safe." The commissioners must then decide whether something <br />else in the LUBA decision prevails over the true facts presented herein. The facts in this <br />testimony would assuredly be made perfectly clear if and when a subsequent LUBA appeal <br />were filed. Here are the relevant excerpts from the LUBA findings: <br />"Oakleigh Lane is not required to satisfy the EC 9.6870 right of way width standards." <br />Page 45 <br />"[Appellant] has not established that EC 9.8320(6) requires the city to consider the EFC <br />[Eugene Fire Code] standards for fire apparatus access roads in determining whether the <br />PUD will be an impediment to emergency response." Ibid. <br />"the planning commission's decision is supported by evidence in the record from <br />Weishar that Oakleigh Lane at its current 14-foot paved width can safely accommodate <br />emergency vehicles. Weishar relied on the fact that other streets in the city have similar <br />traffic capacity and also lack sidewalks, gutters, and curbs and provide a single 14-foot <br />wide traffic lane. Record 364. Weishar also opined that the city's Design Guidelines <br />allow for narrower (queuing) streets with low volumes of traffic and that suggests they <br />The Court of Appeals offered no opinion on LUBA's findings regarding the safety of Oakleigh Lane <br />and simply affirmed without opinion (AWOP) because the Court required that the City consider new <br />evidence on remand; and, obviously, both the City and (possibly) LUBA would have to consider <br />additional evidence in revised findings. It would have wasted the justices' time to do a detailed <br />analysis of the appeal on these substantive issues when the Court had already determined a "do over" <br />was required. <br />"As a rule, the court will write an opinion unless the members of the panel unanimously agree <br />that publication of an opinion would not benefit the bench, bar, or public. Most often, the judges <br />will agree to affirm without opinion [AWOP] when a case is controlled by well-established <br />precedent or by facts that would render a published decision of limited precedential value." <br />Page 22, Oregon Court Of Appeals Internal Practices Guidelines, July 6, 2007 <br />Conte Appeal Testimony PDT 13-1 Page 12 April 12, 2017 <br />