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CONSERVANCY v. CITY OF GRESHAM. LUBA No. 2006-084 (Or. LUBA 9115/2006) (Or. LUSA, 2006)
<br />which is within unincorporated Clackamas
<br />County, and connect to SE Yellowhammer
<br />Road. Accordingly, the city imposed Condition
<br />of Approval 7 requiring that the applicant submit
<br />as part of final plat documents: (1) a 20-foot
<br />wide right of way or easement across the
<br />residential lot within the Kingswood Heights
<br />subdivision, dedicated to the county, (2)
<br />construction plans for the access, and (3) a
<br />county street construction permit. Before LUBA,
<br />petitioners argued that there was no evidence in
<br />the record that it was "feasible" to construct the
<br />proposed secondary access, given that
<br />Covenants, Conditions, and Restrictions
<br />(CC&Rs) governing the Kingswood Heights
<br />subdivision restrict all use of residential lots to
<br />single-family dwellings and accessory
<br />buildings.' According to petitioners, it is clear
<br />under the Kingswood Heights CC&Rs that use
<br />of a residential lot to construct a street or other
<br />access for a neighboring subdivision is
<br />prohibited. We remanded the city's initial
<br />decision to address this issue.
<br />On remand, the city adopted findings
<br />concluding in relevant part that it is "feasible" to
<br />construct the access road either because (1) the
<br />CC&Rs can be reasonably interpreted to allow
<br />roads that provide access to residential uses and
<br />(2) in any case, the city has the legal authority to
<br />condemn the right-of-way to provide secondary
<br />access notwithstanding the CC&Rs. Petitioners
<br />challenge those conclusions, arguing that the
<br />CC&Rs are unambiguous
<br />Page 4
<br />and clearly would prohibit the proposed access
<br />road, and that the city lacks the legal authority to
<br />condemn the right-of-way necessary to construct
<br />the road.
<br />A. Feasibility
<br />As an initial matter, the city argues that the
<br />legal requirement that local governments address
<br />the feasibility of compliance with approval
<br />criteria should be applied differently where, as
<br />here, the issue raised regarding the feasibility of
<br />compliance largely involves a legal question and
<br />r
<br />lastcse
<br />the courts, not the city, have jurisdiction in the
<br />final analysis to resolve that question. The city
<br />recognizes that, in a line of cases based on
<br />Meyer v. City of Portland, 67 Or App 274, 678
<br />P2d 741 (1984) and Rhyne v. Multnomah
<br />County, 23 Or LUBA 442 (1992), the Court and
<br />LUBA have held that, in a two-stage approval
<br />process such as subdivision approval, where a
<br />problem is identified that raises concerns
<br />whether proposed development can comply with
<br />applicable approval criteria, the local
<br />government may, among other options, adopt
<br />findings demonstrating that solutions to the
<br />identified problem are "feasible," i. e., "possible,
<br />likely and reasonably certain to succeed."
<br />Meyer, 67 Or App at 280, n 5. In Rhyne, we
<br />explained that:
<br />"Assuming a local government finds
<br />compliance, or feasibility of compliance, with
<br />all approval criteria during a first stage (where
<br />statutory notice and public hearing requirements
<br />are observed), it is entirely appropriate to
<br />impose conditions of approval to assure those
<br />criteria are met and defer responsibility for
<br />assuring compliance with those conditions to
<br />planning and engineering staff as part of a
<br />second stage. * * *
<br />"Where the evidence presented during the
<br />first stage approval proceedings raises questions
<br />concerning whether a particular approval
<br />criterion is satisfied, a local government
<br />essentially has three options potentially
<br />available. First, it may find that although the
<br />evidence is conflicting, the evidence
<br />nevertheless is sufficient to support a finding
<br />that the standard is satisfied or that feasible
<br />solutions to identified problems exist, and
<br />impose conditions if necessary. Second, if the
<br />local government determines there is insufficient
<br />evidence to determine the feasibility of
<br />compliance with the standard, it could on that
<br />basis deny the application. Third, * * * instead
<br />of finding that the standard is not met, it may
<br />defer a determination concerning compliance
<br />with the standard to the second stage. In
<br />selecting this third option, the local government
<br />is not finding all applicable approval standards
<br />are complied
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<br />PC Agenda - Page 10
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