implicitly suggested by the applicant or staff. Without a finding that this solution is <br />feasible, the application must fail. <br />There are two kinds of obstacles that make such a solution unlikely, if not <br />impossible: <br />a) There are physical structures that would have to be removed from portions of <br />the required right-of-way, and <br />b) Property owners who have testified in opposition to the proposed development <br />are highly unlikely to agree to dedicate the required right-of-way on their <br />property and to pay tens-of-thousands of dollars in assessments to improve the <br />road. <br />Consequently, before the hypothetical solution can be the basis of any f inding of <br />consistency with the traffic-related approval criteria, the Hearings Official must find <br />some rationale for concluding the "solution" is feasible. <br />Let's examine the three requirements for a solution to be feasible: <br />a) It must be possible. Whether or not it's likely, at least in theory, the City pLa rr be <br />able to obtain the necessary right-of-way by condemnation proceedings; and it <br />would certainly be possible to pave the road and install curbs and sidewalks to <br />meet the "Low Volume Residential Street" standards. As discussed in detail <br />below, neither the City, nor even LUBA, can make the determination on this <br />requirement. <br />b) It must be likely. This requirement is discussed below. <br />c) It must be reasonably certain to succeed. If the required right-of-way were <br />dedicated and the necessary improvements made to Oakleigh Lane, there is no <br />evidence in the record that suggests the widened and improved Oakleigh Lane <br />couldn't safely and efficiently handle the projected traffic. <br />In this case, "feasibility" hinges on whether or not it is possible and likely that the <br />right-of-way dedications can be acquired and the road improved to meet the "Low <br />Volume Residential Street" standards. <br />On the face of it, nothing in the record supports a conclusion that the solution is <br />likely to occur. In fact, just the opposite is true, since there are both physical and <br />legal impediments to acquiring the right-of-way, and there is no indication the City <br />or developer is willing or able to improve Oakleigh Lane. <br />However, in Butte Conservancy v. City of Gresham, LUBA dealt with an argument <br />regarding the "possible and likely" requirements that might be considered in the <br />present case. <br />October 16, 2013 Conte supplemental testimony re PUD 13-1 6 1 Page <br />453 <br />