CONSERVANCY v. CI1 Y OF GRESHAM, LUBA No. 2006-064 (Or. LUBA 9/15/2006) (Or. LUBA, <br />condition of approval, that the condition will be <br />fulfilled prior to final development approvals or <br />actual development. <br />Although we did not couch it in those <br />terms, we applied a similar approach in a recent <br />case with very similar facts. In Stoloff v. City of <br />Portland, 51 Or LUBA 560 (2006), <br />Page 7 <br />the city approved a residential subdivision based <br />in relevant part on a finding that sanitary sewer <br />facilities were "available." The petitioner argued <br />that the proposed sewer facilities required access <br />to a sewer line on his property, and that the <br />service provider did not own an easement over <br />petitioner's property for that purpose. The <br />hearings officer disagreed, finding that the <br />service provider's easement over petitioner's <br />property allowed service to the proposed <br />development. In the alternative, the hearings <br />officer found that the service provider had the <br />legal authority and ability to condemn easements <br />necessary to serve the subject property. On <br />appeal to LUBA, the petitioner disputed both <br />findings, arguing in relevant part that the <br />outcome of any condemnation proceeding was <br />doubtful, because the petitioner intended to <br />challenge any such proceeding. We declined to <br />review the merits of the parties' dispute over the <br />meaning and extent of the existing easement, <br />because we affirmed the hearings officer's <br />alternative disposition that even if the existing <br />easement did not authorize service, the service <br />provider had the authority to condemn an <br />easement: <br />"The parties argue at great length whether <br />the existing easements and applicable property <br />law establish that the district has an easement <br />over petitioner's property; however, that is not <br />the issue before us. The issue is whether PZC <br />[Portland Zoning Code] 33.652.020A.1 is <br />satisfied. It is well established that, where there <br />is conflicting evidence over whether an approval <br />criterion is satisfied or can be satisfied, a local <br />government may either (1) find that the approval <br />criterion is satisfied, or (2) find that it is feasible <br />to satisfy the approval criterion and impose <br /> <br />lastcase <br />conditions necessary to ensure that the criterion <br />will be satisfied. Rhyne v. Multnomah County, <br />23 Or LUBA 442, 447 (1992). In this case, the <br />hearings officer apparently did both-he found <br />that the district had an easement over petitioner's <br />property and also imposed a condition that the <br />district obtain an easement to provide sanitary <br />service to the subdivision. Thus, even if <br />petitioner is correct that the existing easements <br />do not grant the district the ability to connect the <br />proposed subdivision to the existing line on <br />petitioner's property, the finding that the district <br />will condemn the easement if necessary is <br />sufficient to demonstrate that it is feasible to <br />satisfy PZC 33.652.020A.1. If intervenors <br />ultimately cannot satisfy the condition of <br />approval then they will not be able to develop <br />the subdivision." 50 Or LUBA at 565-66 <br />We then distinguished our initial decision <br />in the present appeal: <br />Page 8 <br />"It is true that, in [Butte Conservancy], we <br />held that a condition of approval to construct <br />necessary access through an adjoining <br />subdivision lot in itself did not establish that <br />such access was feasible when the legal right to <br />construct such access was disputed. However, <br />unlike Butte Conservancy, the hearings officer in <br />the present case adopted findings and conditions <br />of approval sufficient to demonstrate that <br />sanitary sewer service is feasible. Although <br />petitioner argues that he will challenge any <br />condemnation proceeding, Rhyne does not <br />require absolute certainty, only a finding that <br />compliance with applicable criteria is feasible, <br />and imposition of conditions necessary to ensure <br />compliance. The decision properly finds that <br />PZC 33.652.020A.1 is satisfied or can feasibly <br />be satisfied through the imposition of <br />conditions." Id. at 566. <br />Turning back to the present case, the city <br />on remand took essentially the same approach as <br />the hearings officer in Stoloff: As in that case, <br />we see no point in addressing the parties' <br />arguments regarding the meaning of the <br />Kingswood Heights CC&Rs, because for the <br />_4.. <br />PC Agenda - Page 12 <br />