<br /> <br /> 3 <br /> <br />SUMMARY OF APPEAL ISSUES <br />The applicant’s appeal statement identifies ten (10) issues, which are restated below. To assist the <br />Planning Commission in determining whether to affirm, reverse, or modify the Hearings Official’s <br />decision, staff has identified pertinent record information and considerations below each appeal <br />issue. Each appeal issue is listed below in bold italics in the order presented in the applicant’s <br />appeal statement. The full text of the Hearings Official’s decision and the written appeal statement <br />are provided as Attachments C and D. The initial Staff Report to the Hearings Official is also included <br />in the application file for reference. <br /> <br />Based on the analysis provided below, staff is recommending that the Planning Commission modify <br />and reverse the Hearings Official’s decision, and conditionally approve the Tentative PUD and <br />Subdivision applications for Braewood Hills 3rd Addition. <br /> <br />Appeal Issue #1: <br />Applicant argues that the Hearings Official erred by rejecting rebuttal evidence submitted by the <br />applicant during the second open record period on August 14, 2024. <br /> <br />Hearings Official’s Decision <br />Following the initial public hearing, the Hearings Official left the record open for three consecutive <br />periods. The Hearings Official rejected and refused to consider evidence submitted by the applicant <br />during the second open record period. The Hearings Official’s rejection of the evidence appears to <br />stem from two assumptions: first, that no new evidence was permitted during the second open <br />record period; and second, that the applicant was inappropriately attempting to use ORS 197.522 to <br />submit new evidence into a closed record. <br /> <br />The Hearings Official correctly determined that the evaluation of the application, “must be based <br />exclusively on the Record established for this application, including all evidence submitted in the <br />application itself, before and during the public hearing, both orally and in writing, and during the <br />prescribed Open Record period” (page 3 of the Hearings Official’s Decision). The Hearings Official, <br />operating under the assumption that no new evidence was allowed during the second open record <br />period, rejected the new evidence the applicant attempted to submit during the second open <br />record period. <br /> <br />The Hearings Official also understood that the new evidence submitted by the applicant during the <br />second open record period constituted an attempt to amend the application pursuant to ORS <br />197.522. On page 4 of the Decision, the Hearings Official states: <br /> <br />ORS 197.797 establishes a structure for submitting evidence to effectively allow the public to <br />participate in the process. ORS 197.522 does not allow the applicant to bypass the statutorily <br />required public hearing process by allowing the applicant to submit new evidence “on the <br />fly” through an amended application, after the record has closed to new evidence, through a <br />process that does not allow for public participation. <br /> <br />The Hearings Official determined that the record closed for new evidence on July 31, 2024, and <br />Planning Commission Agenda Page 5 of 159