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Hearings Official Decision (PDT 24-1; ST 24-3) 5 that does not allow for public participation.7 The hearings official is not an agent of the City; and while ORS 197.522 requires that “prior to making a final decision on the application” the local government must allow the applicant to amend an application that would otherwise be denied, IF it can be so amended to comply with all applicable approval criteria, it does not authorize an independent hearings official to allow such an amendment outside the public hearing process required under ORS 197.797.8 The Record of this proceeding closed for new evidence on July 31, 2024. Any new evidence the applicant attempted to enter into the record after that date will not be considered. E. Evaluation of Requests 1. PLANNED UNIT DEVELOPMENT (PUD) REQUEST The applicant seeks approval of the PUD under the Housing/Clear and Objective approval criteria at EC 9.8325.9 Those criteria require evaluation of the proposed PUD as follows: EC 9.8325(1) The proposal complies with the EC 9.5860 Transition Standards. Finding: The EC 9.5860 Transition Standards do not apply to the proposed single-unit and middle housing development and, therefore, this criterion is inapplicable.10 7 Consistent with ORS 197.797, the applicant could have moved to reopen the Record to allow it to add new evidence into the Record, which would have permitted the public to respond. It did not do so. Instead, in its cover email transmitting its August 14, 2024 testimony, the applicant invited the City to respond, stating “It is quite possible that staff will want to respond to some of our responses – that is, respond with new evidence or argument. The applicant is not opposed to that, provided we can agree to a timeframe AND of course that the HO agree s. If the City is interested in that, let’s discuss promptly.” (August 14, 2024 email from Bill Kloos to City Planners, transmitting second open record period letter and five supporting exhibits. (Emphasis in original.)) This ‘invitation’ for the City to respond to new evidence was not, and cannot be construed as, a request to reopen the record. 8 This applicant’s attorney invoked ORS 197.522 when it appealed a hearing official’s denial of the Laurelwood PUD (PDT 18-3). In that instance the City Planning Commission followed a process that allowed the applicant to amend its application and that ensured compliance with the requirements of then ORS 197.763. 9 The attorney representing Videra Oak Meadows and Wes Van Winkle submitted written testimony and argument, asserting that both the PUD and subdivision applications must be denied because they “are being processed under provisions directly affected by Ordinance No. 20705” which was not acknowledged at the time of the applications and, accordingly, required findings of compliance with the Statewide Planning Goals. Neither the application nor the staff report included Goal compliance analysis or proposed findings. Ordinance 20705, which was on appeal to the Land Use Board of Appeals (LUBA) when the applications were filed, and which has now been remanded to the City for additional findings to establish Compliance with Goal 11, is the City’s Middle Housing Ordinance. While these applications certainly implicate the middle housing regulations, neither application is being processed under Ordinance No 20705. The PUD application is processed under and subject to compliance with EC 9.8325; and the subdivision application is processed under and subject to compliance with EC 9.8505. The City was not required to make findings of Goal compliance for either of the applicable approval processes. 10The EC 9.5860 Transition Standards apply only to new buildings and increases in the square footage of livable floor area of some existing buildings within multi-unit developments and assisted care, boarding and rooming houses, campus living organizations, university or college dormitories, and single room occupancy uses where those uses abut land zoned R-1, S-C/R-1, or S-RN/LDR.