<br /> <br /> 7 <br /> <br />a condition of approval requiring on-site detention for any lots that are developed with <br />Middle Housing, and the inclusion of Exhibit I titled Storm Water Memo – KPFF Engineering, <br />is responsive to various submitted public testimony 1 regarding stormwater runoff from <br />individually owned and developed lots. <br /> <br />ORS 197.522 <br />As the Hearings Official explained: <br /> <br />ORS 197.522 requires local governments to approve needed housing applications that are <br />consistent with, or can be made consistent with, through reasonable conditions of approval, <br />the comprehensive plan and applicable land use regulations, and to deny applications that <br />are not. ORS 197.522(3) allows an applicant to amend its application or to propose <br />reasonable conditions to make its application consistent with the comprehensive plan and <br />applicable land use regulations. <br /> <br />*** <br />ORS 197.522 does not, however, authorize the applicant to achieve this end outside the <br />public hearing process or without giving the public an opportunity to participate. The <br />applicant cannot simply amend its application “on the fly” - or introduce new evidence into <br />the record after the record has closed for new evidence – and demand that ORS 197.522 <br />entitles it to an approval. (See Hearings Official’s Decision, page 4). <br /> <br />As discussed above, although the staff’s PowerPoint presentation incorrectly indicated that the <br />record closed to new evidence after the first open record period, both the open record notice <br />included in the application file and posted on the website and ORS 197.797 allow for submission of <br />new, responsive evidence during the second open record period. So, the record was still open when <br />the applicant submitted the evidence rejected by the Hearings Official. Additionally, although the <br />applicant’s materials could have been worded more clearly, it appears that the applicant did not <br />intend to invoke ORS 197.522 before the Hearings Official. <br /> <br />In the applicant’s August 14, 2024, submission, the applicant mentions ORS 197.522 only one time <br />(page 3), stating: <br /> <br />The applicant is also entitled to amend the proposal, including with modifications and <br />additional evidence, if that is what is needed for approval. See generally ORS 197.522. The <br />applicant believes that it is entitled to approval, as submitted here and suggested for modest <br />changes, under clear and objective standards. <br /> <br />It appears to staff that the applicant did not intend to invoke ORS 197.522 to amend the application, <br />but instead intended to remind the Hearings Official of the applicant’s entitlement under ORS <br /> <br />1 See submitted testimony (7-10-24 Smith, Larry) referencing a recommended condition of approval for individual lot <br />owners to treat impervious surface flows from their lots. See submitted testimony (7-10-24 Laule, Kim) questioning <br />how individual property owners will provide water retention and maintenance on their own properties. Also see <br />submitted testimony (7-27-24 Lawrence, Grace) citing EC 9.6790(2) and 9.6793(3)(a) concern with individual lot owners <br />building and maintaining water detention systems. <br />Planning Commission Agenda Page 9 of 159