CONSERVANCY v. CITY OF GRESHAM, LUBA No. 2006-084 (Or. LUBA 9(1512006) (Or. LUBA, 2006) <br />Page 5 <br />with, or that it is feasible to do so, as part of the <br />first stage approval (as it does under the first <br />option described above). Therefore, the local <br />government must assure that the second stage <br />approval process to which the decision making <br />is deferred provides the statutorily required <br />notice and hearing * * 23 Or LUBA at 447-48 <br />(footnotes omitted). <br />Where the local government takes the first <br />approach-finding that the approval criterion is <br />met or that feasible solutions to identified <br />problems exist, and imposing necessary <br />conditions those findings and conditions may <br />be challenged as inadequate or not supported by <br />substantial evidence. Salo v. City of Oregon <br />City, 36 Or LUBA 415, 428-29 (1999), <br />The city argues that the above framework is <br />typically applied when the identified "problem" <br />involves a fact-specific technical or physical <br />issue posed by the development, such as the <br />ability to construct public facilities or avoid <br />hazardous conditions. According to the city, that <br />framework is more problematic when the <br />identified "problem" involves an alleged legal <br />impediment that is beyond the local <br />government's jurisdiction or authority to resolve. <br />The city argues that the meaning of the <br />Kingswood Heights CC&Rs, specifically <br />whether the CC&Rs prohibit the proposed <br />secondary access, is a question of law or a <br />mixed question of law and fact that is within the <br />jurisdiction of the circuit court, and will be <br />definitively resolved only if residents of the <br />Kingswood subdivision invoke the circuit court's <br />jurisdiction seeking to stop the proposed <br />secondary access.' The city argues that its <br />interpretation of the CC&Rs will have no <br />binding legal effect in any circuit court action, <br />and that it makes little sense to require the city <br />to interpret the CC&Rs in the first instance. <br />Rather than require the local government to <br />engage in a non-binding legal analysis to resolve <br />a question. of law that the city has no authority to <br />determine, the city recommends that the <br />obligation to evaluate "feasibility" should <br />lastcase <br />proceed differently than when the city is <br />evaluating technical or physical feasibility. <br />According to the city, the local government <br />Page 6 <br />should only be required to "determine that the <br />legal position is warranted by existing law or is a <br />nonfrivolous argument based on existing law." <br />City of Gresham's Response Brief 10-11. The <br />city argues that such a test would be similar to <br />the test that LUBA has applied when local land <br />use standards expressly require compliance with <br />state agency requirements or that the applicant <br />secure a state agency permit. In those cases, the <br />city argues, LUBA has held that the local <br />government is not required to establish that the <br />state agency requirements can in fact be <br />satisfied. Instead, the local government need <br />only determine that the necessary agency permit <br />is "available" and that the applicant is not <br />precluded from obtaining, such agency permits <br />as a matter of law. Wetherell v. Douglas County, <br />44 Or LUBA 745, 755-56 (2003); Sam Miller v. <br />City of Joseph, 31 Or LUBA 472, 478 (1996); <br />Bouman v. Jackson County, 23 Or LUBA 628, <br />646-47 (1992). <br />We generally agree with the city that the <br />Meyer and Rhyne feasibility analysis must be <br />applied somewhat differently when the <br />"problem" identified at the first stage of a two- <br />step approval process is an alleged legal <br />impediment to fulfilling a condition of approval <br />requiring facilities necessary for the proposed <br />development, rather than a technical, <br />engineering or similar issue. In such <br />circumstances, where neither the local <br />government nor LUBA -have jurisdiction to <br />resolve the legal question, and that legal <br />question must be resolved in a particular way to <br />allow the condition to be fulfilled so that an <br />applicable approval standard will be satisfied, <br />neither the local government nor LUBA need <br />engage in a detailed or definitive legal analysis. <br />In our view, it is sufficient for the local <br />government in such circumstances to (1) adopt <br />findings that establish that fulfillment of the <br />condition of approval is not precluded as a <br />matter of law, and (2) ensure, in imposing the <br />_3_ <br />PC Agenda - Page 11 <br />