<br /> <br /> 5 <br /> <br />contain a transcription error and incorrectly state that during the second open record period “only <br />responsive testimony” was allowed, “no new evidence.” <br /> <br />Conversely, the open record notice included in the application file and posted on the City’s website <br />correctly stated that during the second open record period “[w]ritten testimony (evidence and <br />argument) that directly responds to testimony received during the first open-record period [may be <br />submitted]. Testimony received during the second open-record period should specifically identify <br />the testimony from the first open-record period to which it responds.” The third open-record <br />period is only open to the applicant and only “[w]ritten argument (not evidence) that directly <br />responds to testimony received during the first and second open record periods” may be submitted. <br /> <br />The open record notice included in the application file and posted on the website is consistent with <br />the City’s usual practice, and more importantly, is consistent with the quasi-judicial procedures <br />required by ORS 197.797(6) and the caselaw interpreting those procedures. See Landwatch Lane <br />County v. Lane County, 75 Or LUBA 302, 307-08 (2017) (new evidence is allowed during the second <br />open record period as long as it responds to evidence and argument submitted during the first open <br />record period); see also Friends of the Hood River Waterfront v. City of Hood River, 67 Or LUBA 179, <br />195-96 (2013). <br /> <br />It appears that staff erred in translating the instructions that were included in the open record <br />notice onto the PowerPoint shown at the public hearing. The PowerPoint instructions incorrectly <br />transposed the “no new evidence” requirement from the third open record period to the second <br />open record period, which is likely why the Hearings Official believed that no new evidence was <br />allowed during the second open record period. <br /> <br />The Planning Commission should apply the correct open record instructions included in the notice <br />that was placed in the application file and posted on the website. The instructions in that notice are <br />consistent with the quasi-judicial procedures required by ORS 197.797(6) and the caselaw <br />interpreting those procedures. The open record instructions included in the notice allow for <br />responsive new evidence to be submitted during the second open record period, so the Planning <br />Commission should reverse this portion of the Hearings Official’s decision and determine that the <br />record was open to responsive new evidence during the second open record period. <br /> <br />Consideration of Previously Rejected Argument & Evidence <br />Staff believes upon closer review, that the evidence submitted by the applicant during the second <br />open record period does directly respond to testimony submitted during the first open record <br />period, and therefore should be considered by the decision-maker. As such, the following discussion <br />of that evidence and argument is provided for additional guidance to the Planning Commission as it <br />relates to compliance with the appliable approval criteria. <br /> <br />During the first open record period staff proposed an additional condition of approval regarding <br />street connectivity. The new proposed condition provided: <br /> <br />Prior to final PUD approval, the applicant shall submit updated application materials <br />demonstrating that an exception is warranted for Randy Lane under EC 9.6815(2)(h). <br />Planning Commission Agenda Page 7 of 159