Page 2 <br />September 6, 2016 <br />attempt to sideline Valley River Inn in this public process. As part of its initial post-hearing <br />evidentiary submission, the Applicant dumped a large number of documents into the record <br />without any explanation of which issues those documents address and how they resolved them. <br />The Applicant took this approach because it wanted to wait until its final argument to provide <br />that explanation and thereby eliminate any opportunity for Valley River Inn to weigh in on these <br />responses. The Applicant then filed a final argument that contained substantial new evidence <br />when it knew the final argument was not supposed to contain new evidence. It was this <br />procedural violation that led the Hearings Official to grant Valley River Inn the opportunity to <br />respond to the final argument and new evidence. <br />At the end of the day, the Hearings Official evaluated the parties' arguments and the evidence, <br />and concluded that the Applicant failed to demonstrate compliance with three separate approval <br />criteria. Now that the Applicant realizes it should have taken Valley River Inn's concerns and <br />points more seriously, it is attempting to re-litigate the issues on appeal. The Applicant's appeal <br />is based predominately on new issues and evidence that it never raised before the Hearings <br />Official. The Applicant presumably took this approach because it realized that it cannot <br />demonstrate error based solely on the issues and evidence it raised below. <br />There are two fundamental flaws with the Applicant's appeal. First, the Applicant failed to file a <br />timely appeal by filing it one day after the 12-day appeal period. As a result, the Hearings <br />Official's decision is the City's final decision and the Planning Commission lacks jurisdiction to <br />consider the appeal. <br />Second, the Applicant's attempt to re-litigate these issues based on new arguments and evidence <br />is expressly prohibited under the appeal procedures set forth in Eugene Code (EC) 9.7655. The <br />appeal is an on-the-record appeal with a very narrow scope. The Planning Commission must <br />limit its review to the issues and evidence raised before the Hearings Official. The Planning <br />Commission's role is to determine if the Hearings Official erred in his decision based on the <br />issues, arguments or evidence raised below, not to act as an independent review body and review <br />the approval criteria and evidence anew. <br />As a result of the Applicant's flawed approach on appeal, there is simply no legal basis to <br />overturn the Hearings Official's decision. Even if the Planning Commission could consider the <br />appeal and the plethora of new issues and evidence the Applicant raised, it still could not <br />determine that the Application complies with the approval criteria. <br />Response to Appeal <br />A. Procedural Issues. <br />1. The Applicant failed to file a timely appeal and therefore the appeal must be <br />dismissed for lack of jurisdiction. <br />There is no question that the Applicant was required to file its appeal within 12 days of the date <br />the notice of decision is mailed. EC 9.7655(1) provides: "Within 12 days of the date of the <br />mailing of the decision of the hearings official or historic review board, the decision may be <br />