The City of Gresham argued that a future easement was feasible, even without the <br />property owner's consent, because the City could condemn the necessary right-of- <br />way. Further, Gresham argued that the question of "feasibility" involved primarily a <br />"legal impediment" (i.e., objection to condemnation by the property owner). <br />Gresham then argued that determination of whether such condemnation <br />proceedings would be lawful (and thus, gaining the necessary right-of-way was <br />"possible") was a legal matter that could be resolved paly by the owner contesting <br />the condemnation in circuit court proceedings. In other words, Gresham argued that <br />while the City couldn't prove the solution was feasible, the opponents couldn't <br />prove the solution was infeasible. (Note that the LUBA decision seemed to focus <br />more on the question of "possible" and assume that the same arguments applied to <br />"likely." In the current case, as will be explained, there is no need to make the <br />distinction because the "Solomonic" approach that LUBA established takes care of <br />both questions.) <br />LUBA agreed with Gresham with respect to a "legal impediment": <br />"We generally agree with the city that the Meyer and Rhyne feasibility analysis <br />must be applied somewhat differently when the "problem" identified at the first <br />stage of a two-step approval process is an alleged legal impediment to fulfilling a <br />condition of approval requiring facilities necessary for the proposed <br />development, rather than a technical, engineering or similar issue." <br />LUBA also set a very low bar for the City to meet the "feasibility" requirement with <br />respect both to future right-of-way and road improvements: <br />"Certainly, petitioners [opponents] have not demonstrated that any uncertainty <br />with respect to the city's condemnation authority is such that it can be said that <br />fulfillment of the condition of approval requiring dedication and construction of <br />the access road is precluded as a matter of law." ' <br />In the present case, there are physical' as well as legal, impediments to bringing <br />Oakleigh Lane up to the necessary standards (i.e., the structures that occupy <br />portions of the necessary right-of-way). However, should the Hearings Official <br />nevertheless make a determination that such a "solution" is feasible, LUBA also <br />made clear that the necessary condition of approval must require that all of the <br />necessary right-of-way be obtained and the im rovements done before development <br />was permitted. <br />"In our view, it is sufficient for the local government in such circumstances to (1) <br />adopt findings that establish that fulfillment of the condition of approval is not <br />precluded as a matter of law, and (2) ensure, in imposing the condition of <br />October 16, 2013 Conte supplemental testimony re PUD 13-1 7 1 Page <br />454 <br />