development. <br />The originally submitted application materials requested an exception to the requirement to <br />connect Randy Lane, citing the prohibition on development above 901 feet in the Tentative PUD <br />approval criteria at EC 9.8325(8). The applicant asserts that the initial staff report indicated <br />support for this exception. However, the City's Memorandum submitted into the record on July <br />311? 2024, revised the findings at EC 9.6815(2)(a) and (b) Street Connectivity Standards, and added <br />a recommended condition of approval requiring the applicant to submit updated application <br />materials demonstrating that an exception is warranted for Randy Lane under one of the bases <br />articulated in EC 9.6815(2)(h). Alternatively, the staff memo provided that the applicant could <br />submit for an Adjustment Review under EC 9.6815(2)(i). <br />The applicant notes that the City's written notice given on July 10, 2024, stated the second open <br />record 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 — ORS <br />197.797(6)(c). <br />The applicant argues that its August 14, 2024, submission was not under the authority of an ORS <br />197.522 proceeding to amend the application with new evidence. The applicant argues that the <br />evidence submitted did not change the application, but rather it responded to the revised findings <br />from Public Works staff that the applicant had failed to submit evidence to justify an exception to <br />making a street connection. The applicant asserts that under state law (ORS 197.797(6)(c)), the <br />applicant is entitled to rebut the new position articulated by City staff on July 30, 2024, with new <br />evidence. <br />Planning Commission's Determination <br />The Planning Commission has identified three major considerations with respect to this appeal <br />issue: (1) Did the applicant actually invoke their rights under ORS 197.522; (2) should the <br />applicant's materials submitted on August 14, 2024 be considered part of the record for review; <br />and (3) did the applicant's response to EC 9.6815 within the August 14, 2024 evidence provide <br />sufficient response to warrant an exception to the street connectivity standards under EC <br />9.6815(2)(h) to not require the connection of two sections of Randy Lane? <br />As explained in detail in response to applicant's first appeal issue, Planning Commission finds that <br />the applicant did not intend to invoke the applicant's right to amend the application pursuant to <br />ORS 197.522, and the Hearings Official erred by so finding. <br />Also as discussed in more detail in response to Appeal Issue #1, the Planning Commission finds <br />that the new evidence presented by the applicant during the second open record period was <br />intended to rebut testimony submitted during the first open record period (in this case, the new <br />proposed condition of approval) and should therefore be considered by the Planning Commission <br />as the decision -maker. <br />Regarding the third consideration, Planning Commission finds that the applicant has satisfied EC <br />9.6815, by showing that the applicant is entitled to an exception under EC 9.6815(2)(h). The <br />Planning Commission agrees with the Hearings Official, who, on page 27 of her decision, correctly <br />Final Order: Braewood Hills 3rd Addition (PDT 24-1 and ST 24-3) Page 20 <br />