<br /> <br /> 4 <br /> <br />therefore rejected the new evidence the applicant attempted to enter into the record after that <br />date (during the second open record period). <br /> <br />Summary of Applicant’s Argument <br />The applicant argues that the evidence the applicant submitted during the second open record <br />period on August 14, 2024, was rebuttal evidence, as it directly responded to testimony submitted <br />during the first open record period. The applicant further argues that rebuttal evidence was allowed <br />during the second open record period by ORS 197.797(6)(c) and the July 10, 2024, open record <br />notice included in the application file and posted on the City’s website. The applicant asserts the <br />following: <br /> <br />The Decision at page 2 para 2 misstates the post-hearing procedures that were followed. The <br />decision says the second open record period was “until 5:00 pm on August 14, 2024, for <br />testimony responding to the additional testimony and evidence submitted during the initial <br />open record period.” The actual notice given on July 10 stated the second open record <br />period is for: [w]ritten testimony (evidence and argument) that directly responds to <br />testimony received during the first open record period.” The notice given matches state law <br />– ORS 197.797(6)(c). <br /> <br />The applicant also asserts that the Hearings Official erroneously found that the applicant modified <br />the application by invoking ORS 197.522. The applicant argues, “the applicant stated an intent to <br />amend the proposal as needed to secure an approval, as allowed by ORS 197.522. Nothing in the <br />applicant’ s submittal invokes a 197.522 proceeding before the Hearing Official. Nothing in the <br />second open record submitted requested to modify the proposal.” The applicant argues that the <br />evidence submitted on August 14, 2024, was limited to rebuttal evidence and should be considered. <br /> <br />Staff Response <br />For the reasons articulated below, staff believe that the Planning Commission should reverse this <br />portion of the Hearings Official’s decision and consider the evidence the applicant submitted during <br />the second open record period. <br /> <br />First, on balance, it appears that the open record instructions were intended to allow new evidence <br />during the second open record period, as long as the new evidence directly responds to testimony <br />provided during the first open record period. Second, although the applicant’s materials could have <br />been more clearly written, it appears that the applicant did not intend to invoke ORS 197.522 or <br />amend the application. The new evidence presented by the applicant during the second open record <br />period is intended to rebut testimony submitted during the first open record period and should <br />therefore be considered by the decision-maker. <br /> <br />Open Record Instructions <br />Staff mistakenly provided two different sets of open record instructions to interested parties. One <br />set of (incorrectly stated) open record instructions was provided at the close of the public hearing. <br />A second set of (correctly stated) open record instructions was provided in the open record notice <br />included in the application file and posted on the City’s website. The instructions included in the <br />staff PowerPoint and posted onscreen during the Hearings Official’s virtual public hearing appear to <br />Planning Commission Agenda Page 6 of 159