661-010-0045 Taking Evidence Not in the Record (1) Grounds for Motion to Take Evidence Not in the Record: The Board may, upon written motion, take evidence not in the record in the case of disputed factual allegations in the parties’ briefs concerning unconstitutionality of the decision, standing, ex parte contacts, actions for the purpose of avoiding the requirements of ORS 215.427 or 227.178, or other procedural irregularities not shown in the record and which, if proved, would warrant reversal or remand of the decision. The Board may also upon motion or at its discretion take evidence to resolve disputes regarding the content of the record, requests for stays, attorney fees, or actual damages under ORS 197.845. (2) Motions to Take Evidence: (a) A motion to take evidence shall contain a statement explaining with particularity what facts the moving party seeks to establish, how those facts pertain to the grounds to take evidence specified in section (1) of this rule, and how those facts will affect the outcome of the review proceeding. The motion to take evidence shall be filed as a separate document and shall not be contained within a brief or other filing. (b) A motion to take evidence shall be accompanied by: (A) An affidavit or documentation that sets forth the facts the moving party seeks to establish; or (B) An affidavit establishing the need to take evidence not available to the moving party, in the form of depositions or documents as provided in subsection (2)(c) or (d) of this rule. (c) Depositions: the Board may order the testimony of any witness to be taken by deposition where a party establishes the relevancy and materiality of the anticipated testimony to the grounds for the motion, and the necessity of a deposition to obtain the testimony. Depositions under this rule shall be conducted in the same manner prescribed by law for depositions in civil actions (ORCP 38-40). (d) Subpoenas: the Board shall issue subpoenas to any party upon a showing that the witness or documents to be subpoenaed will provide evidence relevant and material to the grounds for the motion. Subpoenas may also be issued under the signature of the attorney of record of a party. Witnesses appearing pursuant to subpoena, other than parties or employees of the Board, shall be tendered fees and mileage as prescribed by ORS 44.415(2) for witnesses in civil actions. The party requesting the subpoena shall be responsible for service of the subpoena and tendering the witness and mileage fees to the witness. (3) Any party may file a response within 14 days of the date of service of the motion to take evidence. The response shall specifically state what facts alleged in the motion are contested, with references to where contrary facts are found in the record or in affidavits or documents appended to the response. (4) If the Board grants the motion to take evidence, the Board shall so notify the parties, and indicate whether it will decide the motion on the submitted materials, whether it will allow depositions or discovery of evidence under section (2), or whether it will schedule an evidentiary hearing on the motion. (5) Conduct of Hearing: (a) Where the Board schedules an evidentiary hearing, the hearing shall be conducted in the following order, insofar as the Board finds it practical: (A) The moving party shall present its evidence including that of any witnesses; (B) The other party(ies) shall have the opportunity to present evidence rebutting that of the moving party; (C) The moving party may present surrebuttal evidence; (b) Any witness is subject to cross examination by opposing parties. (c) Any member of the Board may question any witness; (d) The burden of presenting evidence in support of a fact or proposition rests on the proponent of the fact or proposition; (e) The Board may continue a hearing, and may set time limits for any hearing; (f) Exhibits shall be marked to identify the party offering the exhibits. The exhibits shall be preserved by the Board as part of the record. (6) Evidentiary Rules: (a) Evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs shall be admissible. (b) Irrelevant, immaterial or unduly repetitious evidence shall be excluded. (c) All evidence not objected to shall be received by the Board, subject to the Board’s power to exclude irrelevant, immaterial or unduly repetitious matter. (d) Evidence objected to may be received by the Board. Rulings on the admissibility of such evidence, if not made at the hearing, shall be made at or before the time a final order is issued. (e) Any time 14 days or more before a hearing, any party may serve on every other party an affidavit, certificate or other document the party proposes to introduce in evidence. Unless cross-examination of the affiant, certificate preparer or other document preparer or custodian is requested within seven days prior to hearing, the affidavit or certificate may be offered subject to the same standards and received with the same effect as oral testimony. If cross-examination is requested, and the requestor is informed within seven days prior to the hearing that the requested witness will not appear for cross-examination, the affidavit, certificate or other document may be received in evidence if the Board determines that the party requesting cross-examination would not be unduly prejudiced or injured by lack of cross-examination. (7) Prehearing Conference: The Board, on its own motion or at the request of any party, may call a prehearing conference to consider: (a) Simplification of the issues; (b) The possibility of obtaining admissions of fact and documents which will avoid unnecessary proof; (c) Limitation of the number of witnesses; (d) The form and substance of any prehearing order; (e) Such other matters as may aid in the disposition of the appeal. (8) Proposed Prehearing Order: The Board, with or without a prehearing conference, may require that the parties prepare and sign a proposed prehearing order to be filed with the Board on or before a date specified by the Board. The order shall contain: (a) A statement of contentions of law of each party; (b) A concise statement of all contentions of fact to be proved by each party; (c) A statement of all agreed facts; (d) A list of witnesses and a summary of their testimony; (e) A list of exhibits and a statement of the contents of each; (f) Such other matters as the Board may require in order to expedite the hearing and appeal. (9) Effect on Time Limits: Unless the Board orders otherwise, the filing of a motion to take evidence shall not suspend the time limits for all other events in the review proceeding, including the issuance of the Board’s final order. Unless the parties agree otherwise, the Board shall schedule any evidentiary hearing not less than ten days after the order granting the motion to take evidence is issued. Statutory/Other Authority: ORS 197.820(4) Statutes/Other Implemented: ORS 197.835(2)(b) History: LUBA 3-2022, amend filed 07/20/2022, effective 08/01/2022 LUBA 1-2019, amend filed 12/24/2019, effective 01/01/2020 LUBA 1-2010, f. 6-30-10, cert. ef. 7-1-10 LUBA 1-2001, f. 10-15-01, cert. ef. 1-1-02 LUBA 1-1998, f. 2-12-98, cert. ef. 3-1-98 LUBA 1-1994, f. & cert. ef. 6-22-94 LUBA 1-1987, f. & ef. 12-30-87 LUBA 1-1983, f. & ef. 10-3-83 LUBA 2-1980, f. & ef. 4-29-80 LUBA 1-1979(Temp), f. & ef. 11-1-79