Appeal Materials 2024-09-17 - Laserfiche WebLink

Eugene Planning Commission September 17, 2024 Page 3 Based on the tentative decision of the Commission, the Applicant will know whether an ORS 197.522 proceeding is needed and, if so, what the scope of that should be. The Commission should approve this use after correcting the errors, as further discussed below. TENTATIVE PUD DECISION (1) Procedural errors: The HO rejected rebuttal evidence submitted by the applicant on August 14. Decision page 5 para 3; see also FN 8, explaining the Applicant could have requested a reopening of the record for new evidence but did not. All evidence submitted on August 14 was rebuttal evidence, referenced to evidence submitted by staff and the parties in the first open record period (July 31), as allowed by state law (ORS 197.797(6)(c), and as confirmed in the July 10 open record notice instructions. The final argument filed on August 21 was limited to argument, including proposed conditions, which constitute argument and not evidence. Rejecting rebuttal evidence submitted on August 14 prejudiced the applicant’s procedural rights. The Decision at page 2 para 2 misstates the post-hearing procedures that were followed. The decision says the second open record period was “until 5:00 pm on August 14, 2024, for testimony responding to the additional testimony and evidence submitted during the initial open record period.” The actual notice given on July 10 stated the second open record period is for: “[w]ritten testimony (evidence and argument) that directly responds to testimony received during the first open record period.” The notice given matches state law – ORS 197.797(6)(c). The HO said at Decision page 2 that in the second open record period “the applicant submitted a memorandum that both responded to evidence in the record and modified the application, including introduction of new evidence not previously submitted.” The Decision erroneously says again at page 3 para D that the applicant modified the application by invoking ORS 197.522. This misstates the submittal. The applicant stated an intent to amend the proposal as needed to secure an approval, as allowed by ORS 197.522. Nothing in the applicant’s submittal invokes a 197.522 proceeding before the Hearing Official. Nothing in the second open record submitted requested to modify the proposal. The applicant’s submittals to date have been limited to evidence, argument and proposed conditioning in response to staff’s post-hearing change of position and demands. Note that no party raised an objection to the procedure followed. The Commission should find: the applicant did not trigger an ORS 197.522 proceeding; it did not modify the application in the second open record period; and its evidence submitted on August 14, 2024, was limited to rebuttal evidence. All of it should be allowed in.