incorrectly transposed the “no new evidence” requirement from the third open record period to <br />the second open record period, which is likely why the Hearings Official believed that no new <br />evidence was allowed during the second open record period. <br /> <br />The Planning Commission finds that in making her decision, Hearings Official appears to have applied <br />the incorrectly transcribed open record instructions provided at the close of the public hearing, not <br />knowing that the correct open record instructions had also been provided to the applicant and <br />interested parties. The Planning Commission finds the correct open record instructions were included <br />in the notice that was placed in the application file and posted on the website. The open record <br />instructions that were placed in the file and posted on the website are consistent with the quasi- <br />judicial procedures required by ORS 197.797(6) and the caselaw interpreting those procedures. The <br />open record instructions included in the notice allow for new evidence to be submitted during the <br />second open record period, as long as that new evidence “directly responds to testimony received <br />during the first open-record period.” The Planning Commission hereby reverses the portion of the <br />Hearings Official’s decision determining that no new evidence was allowed during the second open <br />record period and instead finds that the record was open to new evidence during the second open <br />record period as long as the new evidence directly responded to testimony received during first open <br />record period. <br /> <br />Consideration of Previously Rejected Argument & Evidence <br />As discussed in more detail below, the Planning Commission finds that the evidence submitted by the <br />applicant during the second open record period directly responds to testimony submitted during the <br />first open record period and should not have been rejected by the Hearings Official. <br /> <br />During the first open record period, City staff proposed an additional condition of approval <br />regarding 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 />Alternatively, the applicant may submit for an Adjustment Review under EC 9.6815(2)(i), <br />which requires a Type II land use application and is subject to the approval criteria at EC <br />9.8030(29). <br /> <br />The Planning Commission finds that the evidence submitted by the applicant on August 14, 2024 <br />(during the second open record period), including a discussion of the issue by Kloos in his August <br />14, 2024, letter, Exhibit D titled Randy Lane Connectivity Profile – KPFF Engineering, and Exhibit F <br />titled PDT 18-4 Staff Report and Attachments, is responsive to the new recommended condition of <br />approval. In his letter dated August 14, 2024, Kloos also included the following arguments and <br />exhibits, all of which are responsive to sections of the City’s Memorandum submitted during the <br />first open record period on July 31, 2024, and/or to public testimony submitted during the first <br />open record period as detailed below: <br /> <br />• Kloos argument regarding Middle Housing rights on Lot 39 and no development above 901 <br />feet, is responsive to the City’s Memorandum and the discussion of the prohibition of <br />single-unit dwellings and middle housing units on Lot 39 and no development above 901 <br />feet (pages 2 and 3, pages 7 through 10) and the recommended condition of approval <br />Planning Commission Agenda 01/28/2025 Page 14 of 42