described below. In the event of any conflict between the Hearings Official’s decision and this Final <br />Order, this Final Order shall prevail. <br /> <br />The written appeal statement submitted by Bill Kloos as the applicant’s representative includes <br />ten appeal issues identifying alleged errors in the Hearings Official’s decision denying the Tentative <br />PUD and Tentative subdivision applications. The appeal makes the case that the Hearings Official’s <br />decision should be reversed and modified, resulting in conditional approval of the subject <br />applications. Each assignment of error in the appeal is set forth below, followed by the Planning <br />Commission’s findings of fact and conclusions related to each appeal issue. As noted above, the <br />Planning Commission’s deliberations supporting this decision took place on January 28 and <br />February 4, 2025. <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 />seven-day periods. During the first open record period anyone could submit any information, <br />including new evidence and argument. There was some confusion and inconsistent instruction <br />about whether new evidence was allowed during the second open record period. Only the <br />applicant could submit testimony during the third open record period and that testimony was <br />limited to argument - no new evidence was allowed. The applicant submitted new rebuttal <br />evidence during the second open record period. The Hearings Official rejected and refused to <br />consider that evidence. The Hearings Official’s rejection of the evidence appears to stem from two <br />assumptions: first, that no new evidence was permitted during the second open record period; <br />and second, that the applicant was inappropriately attempting to use ORS 197.522 to submit new <br />evidence into a closed record. <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 <br />allowed during the second open record period both by ORS 197.797(6)(c) and by the July 10, 2024, <br />open record notice included in the application file and posted on the City’s website. The applicant <br />asserts the following: <br /> <br />The Decision at page 2 para 2 misstates the post-hearing procedures that were <br />followed. The decision says the second open record period was “until 5:00 pm on <br />August 14, 2024, for testimony responding to the additional testimony and evidence <br />submitted during the initial open record period.” The actual notice given on July 10 <br />stated the second open record period is for: [w]ritten testimony (evidence and <br />argument) that directly responds to testimony received during the first open record <br />period.” The notice given matches state law – ORS 197.797(6)(c). <br /> <br />The applicant also asserts that the Hearings Official erroneously determined that the applicant <br />Planning Commission Agenda 01/28/2025 Page 12 of 42