I ELL Nick <br />From: <br />Paul Conte <paul.t.conte@gmail.com> <br />Sent: <br />Tuesday, January 02, 2018 6:20 PM <br />To: <br />Tom Bruno <br />Cc: <br />Susan Hoffman; Sheryl Kelly; Jason Brown; Brent Lorscheider; Becky Dorsey; Nathaniel <br />Teich; Kathleen and Mike Masterson; Kelley Blewster; Faris Cassell; CW Murchison; Cathy <br />Johnson; John Curtis; Jamie Harper; WOSTMANN Jan (SMTP); Dick Ragatz; <br />petercraycroft@me.com; GIOELLO Nick R <br />Subject: <br />Re: CHPUD Public Hearing Date - Language in Schirmer's 12/21/17 Email <br />Minor correction Should have said: <br />"...or risk an appeal on the Hearings Official approving the revised application (not the "EK") <br />Paul <br />T <br />On Tue, Jan 2, 2018 at 6:12 PM, Paul Conte <paul.t.contemail.com> wrote: <br />Friends, <br />It may be informative to read what LUBA said in an appeal I brought successfully: <br />"We generally agree with petitioner that the parties to a land use proceeding have the right <br />to review and respond to any formal changes in the application that occurs during the <br />proceedings below, including the opportunity to submit responsive testimony and, <br />potentially, new evidence, regarding whether given the nature of the change the remaining <br />elements of the application continue to comply with applicable approval criteria. If such a <br />change in the application occurs late in the proceedings, the local government may be <br />required to re-open the record to allow other parties a reasonable opportunity to submit <br />responsive testimony and evidence. See Baker v. City of Garibaldi, 49 Or LUBA 437, 446 (2005) <br />(where the applicant submits a revised planned unit development plan the day before the <br />appeal hearing, the city is obligated to allow the parties an opportunity to review and <br />respond to the revision). Failure to provide such an opportunity can be procedural error and <br />a basis for remand, if the petitioner demonstrates that the procedural error prejudiced his <br />substantial rights. ORS 197.835(9)(a)(B). <br />"We understand respondents to argue that petitioner had an adequate 1 opportunity to <br />respond to the changed application during the seven-day open record period for all parties <br />to provide argument, and in fact did so in a May 7, 2012 letter to the city. Respondents are <br />- correct that petitioner submitted argument that addresses the change in the application. <br />Record 100-102. As noted above, petitioner framed his response almost entirely as a <br />request for the city to re-notice the decision and provide another hearing or evidentiary <br />proceeding to allow petitioner to address the "new evidence." However, petitioner also <br />argued in relevant part that the withdrawal of the request to vacate Willamette Alley might <br />1 <br />