Appeal Materials (2) - Laserfiche WebLink

Eugene Planning Commission May 7, 2018 Page 4 (b) The evidence issue The Applicant did not include new evidence with Final Argument; The HO rejected that portion of our April 6 Final Argument (HO labels the April 6 Final Argument as "rebuttal") that explains the site cannot get development approval under the clear and objective standards of EC 9.8325 because she said that the Final Argument included new evidence, and the record was closed to new evidence on that date. HO at 11 last para. "In its April 6, 2018 rebuttal, the applicant responded to the city staff's theoretical discussion of how this property could be development under the City's EC 9.8325 needed housing process by providing some testimony and evidence to dispute the city's analysis. Whether or not the applicant's analysis could be construed as evidence that perhaps no proposed development on the subject property could be approved under EC 9.8325, the hearings official rejects that analysis for two reasons: First, the applicant's April 6, 2018 submittal was for rebuttal testimony only and allowed no new evidence. To the extent the applicant April 6, 2018 submission includes new evidence regarding how this property could not satisfy the EC 9.8325 criteria, that new evidence is not properly part of this record." Initially, the HO does not identify what evidence she views as objectionable. That leaves the Applicant and the Commission guessing. However, there was no new evidence submitted with the April 6 Final Argument. Every aspect of the Applicant's Final Argument can be traced to and is supportable by evidence that was put in the record when allowed prior to or at the hearing, in the first open record period for any evidence, or in the second open record period for rebuttal evidence. (c) The Burden of Proof Issue The Applicant demonstrated that: (1) any development of this site requires PUD approval; and (2) no PUD approval is possible under the EC 9.8325 Needed Housing standards, due to the 20% slope grading limitations in EC 9.9325(5). The HO found that the Applicant has the burden of proof to show that no development of the subject property is possible under the Needed Housing standards of EC 9.8325, and that the Applicant did not carry that burden with evidence that was properly in the record. HO at 12 first para. "Secondly, even if the applicant's response to the city's theoretical discussion did not include new evidence, the applicant's analysis does not establish that the EC 9.8325 process was not available to them. At most, it establishes that the applicant disagrees with the staff's theoretical analysis as to how the property could be developed under that process. While the applicant disputes the city's analysis, it is the applicant, and not the city, that must bear the burden of proof."