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Home My WebLink AboutLU 23-0002 Approved DRC Order on Evidence 1 BEFORE THE DEVELOPMENT REVIEW COMMISSION OF THE CITY OF LAKE OSWEGO 2 SERIAL LOT LINE ADJUSTMENTS RESULTING ) LU 23-0002 3 IN FIVE RESIDENTIAL LOTS, UNAVOIDABLE ) NEW LOOK DEVELOPMENT 4 UTILITY (SEWER) CROSSING OF AN RP DISTRICT, AND REMOVAL OF 43 TREES ) ORDER ON EVIDENCE 5 NATURE OF PROCEEDINGS 6 This matter came before the Lake Oswego Development Review Commission 7 (Commission) for a public hearing on November 20, 2023. A request for continuance resulted in 8 a second evidentiary hearing on December 18, 2023. Per LOC 50.07.003.4.a.xi(1) and ORS 9 197.763(6)(b), a further request was made to leave the record open until December 26, 2023 10 for persons to submit written additional evidence, arguments or testimony for the purpose of 11 responding to the new written evidence submitted on December 18, 2023. The continued 12 hearing was held on January 3, 2024. 13 OBJECTIONS TO CERTAIN EXHIBITS BEING CONSIDERED AS PART OF THE RECORD 14 A. Written Testimony Limited to New Evidence, Arguments or Testimony in Response to 15 Written Evidence Submitted by December 18, 2023. [Submission Deadline: December 16 26, 2023, 5:00 pm]. 17 LOC 50.07.003.4.a.xi(1) and ORS 197.763(6)(b) provides, in relevant part, that during the 18 seven-day period ending December 26, "any person may submit written testimony raising new 19 issues which relate to the new evidence, testimony or criteria for decision-making which apply 20 to the matter at issue." Exhibits G-626 through G-630 were received prior to the 5:00PM deadline on December 26, 2023. 21 Applicant Objection to Commission Consideration of Exhibits G-626 and G-628. 22 The applicant objected on December 27, 2023 to Exhibits G-626 and G-628 submitted 23 during the seven-day period as part of the Record to be considered by the Commission in its 24 deliberation because "[n]either one addresses new material that was placed in the record 25 following the conclusion of the public hearing" (Exhibit F-021). 26 Page 1 — ORDER ON EVIDENCE (LU 23-0002) 1 Staff notified the applicant and the respective submitters of the objection prior to the 2 January 3, 2024 public hearing, advising that they would have an opportunity to present 3 argument in regards to the objection. 4 Commission Findings and Decision Upon Objections 5 Based upon written and oral testimony, and lack thereof, the Commission deliberated, 6 found, and voted upon objections, which this Order memorializes, as follows: 7 1. Exhibit G-626 Kohlhoff 12-23-2023 8 Exhibit G-626 was received within the deadline of December 26, 2023. Following the 9 applicant's objection, the submitter presented written argument in response to the applicant's 10 11 objection on January 2, 2024 (Exhibit G-631), stating that the new evidence contained within 12 Exhibit G-626 was in response to the City's submission of Exhibit F-017 on December 15, 2023, 13 which was further addressed by Exhibit F-020 on December 22, 2023. The applicant did not 14 submit further argument than as stated in its Exhibit F-021. 15 The Commission finds that Exhibit G-626 is sufficiently in response to Exhibit F-017 (as 16 further addressed by Exhibit F-020) that Exhibit G-626 should be considered as submitted. 17 18 Commission Vote: Pursuant to motion, the Commission rejected the applicant's 19 objection and shall consider Exhibit G-626 as part of the Record to be considered by the 20 Commission in its deliberation upon the application. (Vote: 6-0, 1 absent;January 3, 2024 21 Commission Video). 22 2. Exhibit G-628 Schwartz 12-26-2023 23 Exhibit G-628 was received within the deadline of December 26, 2023. The applicant did 24 not submit further argument than as stated in its Exhibit F-021. No argument was submitted by 25 26 the submitter of Exhibit G-628. Page 2 — ORDER ON EVIDENCE (LU 23-0002) 1 The Commission finds that Exhibit G-628 is a statement of position of the submitter of 2 Exhibit G-628, as Exhibit G-628 does not identify any part of a written exhibit filed prior to 3 December 18, 2023 to which it is presenting new evidence in response. The applicant, staff, and 4 Commission are not obliged to search Exhibit G-628 for what responding evidence it may 5 6 contain, nor what written evidence was submitted into the Record prior to December 18, 2023 7 to which it may be responding. 8 Commission Vote: Pursuant to motion, the Commission granted the applicant's 9 objection and shall not consider Exhibit G-628 as part of the Record to be considered by the 10 Commission in its deliberation upon the application. (Vote: 6-0, 1 absent;January 3, 2024 11 Commission Video). 12 13 B. Exhibits Received After December 26, 2023 14 Based upon written and oral testimony, and lack thereof, the Commission deliberated, 15 found, and voted upon objections, which this Order memorializes, as follows: 16 1. Exhibit F-022 Applicant Rebuttal to New Evidence 1-2-2024 17 Exhibit F-022 was submitted on January 2, 2024. This exhibit is the applicant's rebuttal 18 to Exhibit G-629, which was submitted on December 26, 2023. Staff objected to the 19 Commission's consideration of Exhibit F-022, on the basis that LOC 50.07.003.4.a.xi(1) and ORS 20 21 197.763(6)(b) does not allow an additional time period for sur-rebuttal of exhibits submitted 22 after December 26, 2023. The applicant made no argument. 23 The Commission finds that, pursuant to LOC 50.07.003.4.a.ix(1) and its statutory basis, 24 ORS 1997.763(6)(b), rebuttal evidence may not be submitted after the close of the seven-day 25 period. Thus, Exhibit F-022 was not submitted within the December 26, 2023 deadline. 26 Page 3— ORDER ON EVIDENCE (LU 23-0002) 1 Commission Vote: Pursuant to motion, the Commission rejected the applicant's 2 objection and shall not consider Exhibit F-022 as part of the Record to be considered by the 3 Commission in its deliberation upon the application. (Vote: 6-0, 1 absent;January 3, 2024 4 Commission Video). 5 6 2. Exhibit G-631 Kohlhoff 12-30-2023 7 This exhibit was submitted on December 30, 2023. As noted in Section A.1 of this Order, 8 the submitter asks the Commission to take official notice of certain facts which the submitter 9 asserts would meet the requirements of LOC 50.07.003.4.c.iii: 10 The hearing body may take official notice of all adjudicative facts and law which may be 11 judicially noticed pursuant to ORS 40.060 to 40.0901, including an ordinance, comprehensive plan, resolution, order, written policy or other enactment of the City of 12 Lake Oswego. Matters officially noticed need not be established by evidence and may 13 be considered by the hearing body in determination of the matter. 14 Initially, the Commission notes that LOC 50.07.003.4.c.iii is addressed to the 15 Commission's discretion, in that it authorizes, but does not require, the Commission to act. 16 The Commission finds that it need not consider whether to take official notice of certain 17 facts because the time for the request for submission of evidentiary facts to be considered by 18 the Commission would have been prior to either December 18, 2023, or December 26, 2023 if 19 in response to written evidence submitted prior to December 18, 2023. The request was not 20 21 22 23 1 The relevant statutory section for judicial notice of facts is ORS 40.065: 24 ORS 40.065 Rule 201(b).Kinds of facts.A judicially noticed fact must be one not subject to 25 reasonable dispute in that it is either: (1)Generally known within the territorial jurisdiction of the trial court;or (2)Capable of accurate and ready determination by resort to sources whose accuracy cannot 26 reasonably be questioned. Page 4 — ORDER ON EVIDENCE (LU 23-0002) 1 timely filed and it would not be fair under the principles of due process for the Commission to 2 take official notice of facts after the close of the Record to all parties. 3 Further, the Commission finds that the facts requested to be taken notice of—signature 4 counts of an initiative measure for a charter amendment submitted to the city recorder in 2021 5 6 and their percentage of the then-registered voters—are not facts that are either "readily 7 known" within Lake Oswego or capable of accurate and ready determination without resort to 8 the official records pursuant to ORS 40.065, and the time for submission of those records has 9 passed. 10 Accordingly, the Commission finds that the request to take official notice was not timely 11 filed, and even if it had been, the Commission declines to take official notice of the requested 12 13 facts stated in Exhibit G-631, and those stated facts in Exhibit G-631 shall not be considered by 14 the Commission in its deliberation. 15 Commission Vote: Pursuant to motion, the Commission rejects the submitter's request 16 to take official notice of certain asserted facts stated in Exhibit G-631 and the Commission shall 17 not consider the certain asserted facts in Exhibit G-631 as part of the Record to be considered 18 by the Commission in its deliberation upon the application. (Vote: 6-0, 1 absent;January 3, 19 2024 Commission Video). 20 21 3. Exhibit G-632 Bregar 1-2-2024 22 Exhibit G-632 was submitted on January 2, 2024. Staff objected to the Commission's 23 consideration of Exhibit G-632, on the basis that it was not timely filed prior to December 18, 24 2023. Furthermore, even if Exhibit G-632 was filed prior to December 26, 2023, as being in 25 response to new written evidence filed prior to December 18, 2023, and even if it was 26 Page 5— ORDER ON EVIDENCE (LU 23-0002) 1 presenting new evidence in response to written evidence submitted prior to December 18 2 (which it is not), it was not submitted prior to December 26, 2023. The submitter made no 3 argument in response. 4 The Commission concurs with the basis stated by staff's objection. 5 6 Commission Vote: Pursuant to motion, the Commission granted the objection and shall 7 not consider Exhibit G-632 as part of the Record to be considered by the Commission in its 8 deliberation upon the application. (Vote: 6-0, 1 absent;January 3, 2024 Commission Video). 9 ORDER 10 This Order is adopted to memorialize the above Commission findings and vote. 11 // 12 13 AYES: Arthur, Dewes, Leek, O'Connor, Poinsette, and Sangrey 14 NOES: None 15 ABSTAIN: None 16 EXCUSED: Bates 17 DATED this 16th day of January, 2023. 18 19 20 /s/ Randy Arthur — 21 Randy Arthur, Chair 22 ATTEST: NONE 23 - 24 /s/ Kat Kluge Kat Kluge, Administrative Support 25 26 Page 6 — ORDER ON EVIDENCE (LU 23-0002)