referenced in this memo has been added to the current remand record so that it is <br />readily available.... While new evidence and testimony submitted during the current <br />proceeding could change the Planning Commission's final determination as to whether <br />or not the tentative PUD meets the approval criteria, staff advises that the Planning <br />Commission rely on LUBA's previous findings and conclusions where still relevant and <br />valid, in light of the new testimony and evidence that is expected to be submitted by <br />other parties in this remand proceeding." <br />Commissioners should not "rely on LUBA's previous findings and conclusions." Opponents <br />have no legal burden to prove LUBA's decision was not the right decision. The burden remains <br />squarely on the applicant. <br />In my "Motion to Reject of Strike City Staff Testimony re PDT 13-1," dated April 19, <br />2017, I demonstrated how Berg-Johansen sought to obtain biased comments from other city staff <br />and then misrepresented their conclusions in his own comments to the Planning Commission. <br />Berg-Johansen is not a legal professional and is not qualified to provide commissioners legal <br />advice on such an important issue. Commissioners should look to the Deputy City Attorney for <br />the City's legal opinion. Frankly, Berg-Johansen's statement above appears to be just another <br />attempt to put his thumb on the scale in favor of the applicant. <br />Oral or written evidence from staff not allowed after close of record <br />Commissioners must be cautious not to request or accept new evidence from staff after the <br />evidentiary record is closed (5:00 p.m. on April 19, 2017). While communication with staff is <br />(obviously) allowed, it would be unlawful for a commissioner to be influenced by any "facts" <br />that staff communicates either in writing or orally. For example, staff is not permitted to <br />provide additional facts in the form of additional conclusory opinions from PWD or Fire <br />Marshal staff. <br />Parties have a right to respond to new evidence, including from staff. If such evidence <br />were accepted from staff after the evidentiary record is closed, the Planning Commission would <br />have to reopen the record. Failure to do so would result in a remand on the same procedural <br />error as led to this remand. <br />Approval conditions on right-of-way and paving widths are not "exactions" <br />As covered in more depth on pages 18 to 19 and Exhibit J of my April 12, 2017 testimony, <br />commissioners should not mistakenly misconstrue that the constitutional limitations that apply <br />to exactions also constrain what requirements a City can impose regarding physical conditions <br />and/or infrastructure on Oakleigh Lane to ensure the public's safety. <br />Submitted on the 191h day of April, 2017 by <br />Paul Conte <br />EXHIBIT <br />A. Excerpt from Carrie Richter letter, June 28, 2013 <br />Conte Appeal Testimony - Legal Instructions PDT 13-1 Page 8 April 19, 2017 <br />