approval, that the condition will be fulfilled prior to final development approvals <br />or actual development." (Emphasis added.) <br />In Butte Conservancy v. City of Gresham, the City of Gresham adopted conditions of <br />approval "requiring that the applicant submit as part of final plat documents: <br />(1) a 20-foot wide right of way or easement across the residential lot within the <br />Kingswood Heights subdivision, dedicated to the county, <br />(2) construction plans for the access, and <br />(3) a county street construction permit." <br />It's crucial to understand that all three conditions applied to a future street across <br />property that was not controlled by the applicant. <br />LUBA concluded on this issue: <br />"The city appropriately drafted that condition in a manner that is sufficient to <br />ensure that fulfillment of the condition will occur prior to final development <br />approval. If for one reason or another the condition is unsatisfied, intervenor will <br />not be able to obtain final subdivision approval." <br />If the Hearings Official in the present case were to find, under reasoning similar to <br />LUBA's in Butte Conservancy v. City of Gresham, that the necessary "solution" to <br />obtain right-of-way and improvements for Oakleigh Lane is feasible, despite the <br />evidence of physical and legal impediments, the conditions of approval would have <br />to correspond to the ones imposed by City of Gresham, i.e.: <br />The applicant must submit as part of final plat documents: <br />(1) A 45-foot wide right-of-way or easement along the entire length of <br />Oakleigh Lane from the development to River Road, dedicated to the City, <br />(2) Construction plans for road improvements to meet the required standards <br />of the City of Eugene's adopted Arterial and Collector Street Plan, and <br />(3) The necessary street construction permits to implement the construction <br />plans." <br />Without such conditions, based on evidence in the record, the Hearings Official <br />cannot find that the proposed PUD meets the approval criteria at: EC 9.8320(1), <br />EC 9.8320(5)(a) and (b), EC 9.8320(6) and EC 9.8320(11)(b), and the application must <br />therefore be denied. <br />The LUB guidance is simple, reasonable and legal: Questions about whether the <br />solution is possible and likely in the face of legal impediments must*be resolved by <br />successfully clearing the legal hurdles and having (in this case) the right-of-way <br />October 16, 2013 Conte supplemental testimony re PUD 13-1 8 1 Page <br />455 <br />