untrue, therefore unreliable and do not provide any evidence that support's the applicant's <br />burden of proof. <br />As commissioners take up this application for the third time, you must now thoroughly <br />examine what evidence is presented to support the application and ask whether it is both <br />reliable and substantial, especially in light of the large amount of evidence to the contrary that <br />opponents have presented. In particular, opponents have submitted expert testimony from two <br />independent professional traffic engineers that prove the cursory statements by three city staff <br />(Erik Berg-Johansen, Scott Gillespie and Mark Dahl) are not reliable or substantial, and in <br />several instances (e.g., comments by Mark Dahl) are not even relevant to the issues on appeal. <br />As explained in my "Motion to Reject or Strike City Staff Testimony re PDT 13-1," dated <br />April 19, 2017, the following statement by planning staff provides no actual evidence that can be <br />relied upon for adequate findings: <br />"In summary, Fire staff conclude that the proposed development will actually improve <br />safety for residents along Oakleigh Lane with the new turnaround." Erik Berg-Johansen <br />memo, page 2. (Emphasis added.) <br />This no more than a city planning staff trying to put his thumb on the scale to tilt in favor of the <br />applicant by misrepresenting the evidence in the record. <br />In conclusion, the "burden of proof" principle requires commissioners to look at every <br />piece of evidence the applicant (or staff) present in support of the application, and ask "Is this <br />actually true and relevant?" <br />Deference and the standard of review on appeal <br />Exactly how commissioners are supposed to decide whether or not to approve or deny an <br />application on appeal has been a constant source of misunderstanding among commissioners. <br />The legal basis is actually quite simple: Each commissioner should decide solely whether or not <br />he or she believes the applicant has met the applicant's burden of proof, based upon reliable, <br />probative and substantial evidence in the record. This judgement is to be applied to each of the <br />approval criteria that is subject to the appeal. <br />The Hearings Official's judgment should be given no deference at all. Whatever findings <br />the Hearings Official made with respect to the criteria subject to appeal should be treated just as <br />any other party's arguments. <br />When there is evidence in the record that a reasonable person might rely upon in a <br />finding of either compliance or non-compliance, a commissioner must weigh the balance, <br />remembering that the burden of proof lies with the applicant. It isn't uncommon for a <br />commissioner to have a different judgement than a Hearings Official on the balance of the <br />evidence, and the commissioner is legally charged with acting on his or her own judgement, with <br />no hesitancy or deference because it's different than the Hearings Official's. The "Planning <br />Commission's Scope of Review" and "Burden of Proof" sections on the first three pages of the <br />attached legal opinion from attorney Carrie Richter provide expert legal advice regarding these <br />principles. (See Exhibit A.) <br />Conte Appeal Testimony - Legal Instructions PDT 13-1 Page 3 April 19, 2017 <br />