Hearings Official Decision - Laserfiche WebLink

to compliance with each of the approval criteria. The hearings official is not bound by that initial evaluation; nor is the hearings official's evaluation of the evidence in the record restricted by documents incorporated into the Staff Report. As to Mr. Conte assertion that the City staff has failed to submit one or more versions of the Public Works referral comments into the record, in fact each version has been included, and the hearings official received all versions before the close of the evidentiary record. Moreover, even if the city had not done so, Mr. Conte has also submitted additional copies of each of those documents into the record. Mr. Conte has not established that any party has been prejudiced by lack of ability to respond to the public works referral comments. Mr. Conte's procedural challenge regarding the city's compliance with ORS 197.763 is denied. b. "Motion to Reject or Ignore Impermissible Sentence of Staff Memo " In a motion dated April 4, 2018, Mr. Conte moved that the hearings official must "either reject or ignore an impermissible sentence" in a staff memorandum submitted by the City Staff on March 30, 2018. In that memorandum City planning staff responded to Mr. Conte's March 21, 2018 testimony that questioned the version of the Public Works Referral comments incorporated into the February 28, 2018 staff report. The staff memorandum includes the statement: "Staff maintains the staff report uploaded to the City website on February 28, 2018 is the staff report of record and the staff report given the [sic] to the Hearings Official." Mr. Conte disagrees with that statement. Mr. Conte argues that "it is glaringly obvious" that one or more versions of the Public Works Referral comments were not uploaded onto the City's website at the time the February 28, 2018 staff report was issued. Mr. Conte states: "Mr. Gioello's claim is not [sic] more than a far-too-late "CYA" attempt. At the time the Staff Report was submitted, on the final day allowed by ORS 197.763(4)(b), no reasonable person could have determined (or validated) which sections of the staff report were a verbatim and complete copy of the PWD referral comments. And that means that parties had no reasonable opportunity to present responsive testimony. This post facto claim by staff is too late and insufficient to remedy their procedural errors; and, as explained in my March 28, 2018 letter, the Hearings Official must either reject this sentence or ignore it in order to avoid prejudicing the substantial rights of participants in these proceedings." (Emphasis in original.) Mr. Conte's argument that parties have had no reasonable opportunity to present responsive testimony is unpersuasive. Regardless of whether or which the version(s) of the Public Works Referral comments were uploaded to the city's website on February 28, 2018, and regardless of which version or versions were incorporated the staff report, in fact the record of this application remained open for new evidence by all parties until March 21, 2018. All versions of the Public Works Referral comments were part of the record (and Mr. Conte submitted additional copies of those comments into the record with this testimony.) All parties, including Mr. Conte, had the opportunity to present testimony responsive to those referral comments during that time. Mr. Conte obviously disagrees with Mr. Gioello's statement. In his testimony submitted before, Hearings Official Decision (PDT 17-1)