2017 Remand - Public Comment (2)

Burden of proof Eugene Code states this clearly: EC 9.7085 Quasi-Judicial Hearings - Burden of Proof. The burden of proof is upon the applicant. A decision to resolve the issues presented shall be based upon reliable, probative and substantial evidence in the record. The applicant's burden of proof is in no way diminished simply because the Hearings Official approved the application. In effect, commissioners must begin with no assumption that the applicant has met his burden of proof. Commissioners must look at each of the issues on appeal and decide whether the record contains substantial, reliable evidence that proves the application satisfies the approval criteria that are subject of these appeal proceedings. ("Probative" evidence is evidence that "helps to prove an issue"; in other words, relevant.) Opponents do not have to prove that the application does not satisfy the criteria that are in question. Opponents are required only to provide evidence and argument that raise a reasonable question as to whether or not the application satisfies the approval criteria. Commissioners must then address all relevant issues raised by opponents, including relevant evidence, and determine whether or not the applicant has presented evidence that proves the application overcomes opponents' objections. In the present case opponents have submitted a substantial amount of reliable evidence demonstrating that other evidence in the record, upon which the Hearings Official (and the Planning Commission in prior decisions) based their findings, is not reliable. A notable example is the professional survey submitted by opponent Simon Trautman, which proved that significant conclusions in the Public Works Department's original referral report (September 17, 2013) were invalid because the PWD report assumed a paving width of at least 19 feet for the entire length of Oakleigh Lane, when the survey showed that a 250-foot segment of Oakleigh Lane has paving only 14 feet wide within the right-of-way. Thus, the paving width that was treated as substantial evidence by the Hearings Official was, in fact, not reliable evidence supporting the applicant's burden of proof. (The April 10, 2017 memo from Scott Gillespie repeats this error, incorrectly stating: "The Roadway was improved to an approximate continuous width of 20 feet." ORS 801.450 defines "roadway" as "the portion of a highway that is improved, designed or ordinarily used for vehicular travel, exclusive of the shoulder.") Another important example is text in the 3-page "Weishar" letter, dated August 27, 2015, in which Weishar attempted to misuse the City's street classification system as evidence supporting the applicant's burden of proof. I've described how Weishar's statements on this issue are not at all accurate, and hence not reliable evidence that support's the applicant's burden of proof. (See pages 6-7 of my April 12, 2017 testimony.) Commissioner Taylor's assertions at the September 28, 2017 Planning Commission meeting that "a fourteen foot width that's acceptable as a safe method on a residential street" and "a fire apparatus road [sic] at fourteen-foot wide has been approved by the City Council" provide further examples. My April 12, 2017 testimony demonstrates these statements are Conte Appeal Testimony - Legal Instructions PDT 13-1 Page 2 April 19, 2017