2017 Remand - Public Comment (2)

Gillespie provided no accurate or probative evidence to support his unexplained expression of belief that "City staff finds the existing Oakleigh Lane to be adequate to serve the development site." Likewise, Dahl didn't provide relevant evidence or explain his belief that "[t]he existing Oakleigh Lane in and of itself does not exhibit si ni 'cant risk to emergency response actions." The detailed assessment of these staff "beliefs" by an independent, licensed traffic engineer concluded: "[I]t is my professional opinion that neither document provides relevant, substantial evidence that would contradict the conclusions in the Nemaria[m] Report." (See report by Massoud Saberian, attached to my April 19, 2017 responsive testimony.) In contrast to Weishar's flawed comments, The Nemariam Report that accompanied my April 12, 2017 testimony provides an excellent example of what credible "expert testimony" looks like. It is a detailed, thorough analysis of substantial and reliable evidence with clear explanations of how the conclusions were reached. In the present case, commissioners would be prudent to heed another one of LUBA's decisions: Under Armstrong v. Asten-Hill Co., 90 Or App 200, 752 P2d 312 (1988), the substantial evidence standard is not satisfied when "the credible evidence apparently weighs overwhelmingly in favor of one finding and the [decision maker] finds the other without giving a persuasive explanation." Wal-Mart Stores, Inc. v. City of Bend, 52 Or LUBA 261 (2006). The credible evidence that Oakleigh Lane cannot provide safe and unimpeded emergency response is overwhelming, and there is essentially nothing but "unexplained expression of beliefs" support a finding that the application conforms with EC 9.8320(6). Reliance on LUBA's decision Planning Commissioners cannot give any deference to LUBA's decision on the issues that are subject to further testimony during this remand. The obvious reason is that LUBA's findings were based on what was in the record prior to these proceedings, and the record now contains substantial new evidence and arguments. The fact that the Court of Appeals "Affirmed Without Opinion" ("AWOP'd) LUBA's decision on several issues doesn't change that fact, as the Deputy City Attorney will confirm. The court avoided expending effort on evaluating these substantive issues because it was clear the record was likely to change and so might the City's decision. As with the Hearings Official's evaluations, LUBA's evaluations should be considered only on their merits, the same as any other party's testimony. The following statement in the April 12, 2017 memo from Erik Berg-Johansen is confusing, if not misleading: "It should also be emphasized that LUBA made decisions on some of the issues that are likely to arise again during this remand proceeding before the matter was remanded by the Court of Appeals. LUBA's entire Final Order (LUBA No. 2015-077, April 14, 2016) Conte Appeal Testimony - Legal Instructions PDT 13-1 Page 7 April 19, 2017