BAKER Linda S <br />From: Paul Conte <paul.t.conte@gmail.com> <br />Sent: Tuesday, September 7, 2021 5:51 PM <br />To: MCKERROW Mike J <br />Cc: SEMPLE Emily <br />Subject: Re: Comments re ARA 21-14 and TIA 21-2 (follow-up_ <br />[EXTERNAL Q] <br />For the record in ARA 21-14 and TIA 21-2 (MAJ Eugene Polk Street) <br />Mike, <br />Thank you for taking the time to discuss this combined application. Here's a recap and follow-up request. <br />Please let me know if I have any misunderstandings about our discussion or the facts. <br />I understand that the applicant advised you in a phone call that they were not going to pursue the five-unit <br />apartment that was included in their ARA and TIA applications. Your understanding is that meant the <br />applicant was withdrawing all proposed development of tax lot 18400 from their applications. <br />You were going to check to see if the City has received a written request to revise the application, as I've <br />described. <br />If such a written request has been received, please post it and/or provide me a copy. If such a <br />written request has not been received, please advise if and when the City receives a request and post it <br />and/or provide me a copy. <br />I believe the City must provide an accurate notice, and that all application materials must be available to <br />the public prior to sending the notice and starting the clock on the comment period. Any request to <br />effectively amend the application in a substantial way requires that the public have access to the "final," <br />complete and accurate application, including amendments, for the entirety of the comment period. <br />Otherwise, that would constitute a procedural error that could result in denial by the Hearings Official or <br />remand. <br />I believe in this case, removing an entire tax lot and the proposed phased development of apartments from <br />the application requires that a revised TIA be submitted that is based on the substantially altered "future <br />conditions." City staff do not have the prerogative to make a summary decision for whatever reason staff <br />might think is sufficient that this would not warrant requiring a TIA application that accurately reflects <br />the actual development proposal no less and no more. I pointed out that the City had already been <br />remanded for a similar, ad hoc misjudgement. Here is the relevant excerpt from the LUBA decision for the <br />2012-39 appeal: <br />"We generally agree with petitioner that the parties to a land use proceeding have the right to review <br />and respond to any formal changes in the application that occurs during the proceedings below, <br />including the opportunity to submit responsive testimony and, potentially, new evidence, regarding <br />whether given the nature of the change the remaining elements of the application continue to comply <br />with applicable approval criteria. If such a change in the application occurs late in the proceedings, <br />the local government may be required to re-open the record to allow other parties a reasonable <br />opportunity to submit responsive testimony and evidence. See Baker v. City of Garibaldi, 49 Or LUBA <br />437, 446 (2005) (where the applicant submits a revised planned unit development plan the day before <br />