CONSERVANCY v. CITY OF CRESHAM, LUBA No. 2006-084 (Or. LUBA 9!15/2006) (Or. LUBA, 2006) <br />reasons set out below the city's findings <br />adequately demonstrate that it is feasible for the <br />city to condemn the disputed right-of-way, even <br />if it is ultimately determined that the CC&Rs <br />prohibit use of the residential lot for that <br />purpose.' In other words, couched in the analysis <br />set out above, the city's findings adequately <br />establish that fulfillment of the condition of <br />approval is not precluded as a matter of law, and <br />the city adequately ensured that the condition <br />will be fulfilled prior to final development <br />approval. <br />Page 9 <br />The city responds that it is common to <br />require developers to construct public roads <br />necessary to serve the proposed development, <br />and that ORS 223.930(1) does not limit the city's <br />condemnation powers to public streets that the <br />city directly constructs, improves, <br />Page 10 <br />maintains or repairs. We agree. ORS 223.930(1) <br />does not explicitly require that the city itself <br />construct, improve, maintain or repair the <br />roadway, in order to exercise the condemnation <br />authority. <br />B. Condemnation Authority <br />Petitioners concede that ORS 223.930 <br />grants the city the authority to condemn property <br />outside city limits to acquire a street right-of- <br />way a However, petitioners argue that the city's <br />authority under ORS 223.930 is subject to two <br />express limitations. First, petitioners argue that <br />ORS 223.930(1) requires that the city, and not <br />the land use applicant, must construct the street. <br />The city cannot rely on ORS 223.930 in the <br />present case, petitioners contend, because it is <br />clear that intervenor and not the city will <br />construct the "roadway." <br />Second, petitioners argue, that ORS <br />223.930(1) limits the city's right to condemn <br />under that statute to "roadways" as defined by <br />the Oregon Vehicle Code. According to <br />petitioners, the Oregon Vehicle Code definition <br />of "roadway" and related definitions specify that <br />the right-of-way must be used or intended for <br />use by the "general public." See ORS 801.450 <br />(defining "roadway" as the "portion of a <br />highway that is improved, designed or ordinarily <br />used for vehicular traffic"; and ORS 801.305 <br />(defining "highway" in turn as a public way, <br />road, street, etc. that is "used or intended for use <br />of the general public for vehicles or vehicular <br />traffic"). Because the emergency vehicle access <br />can be accessed only by emergency vehicles, <br />petitioners argue, it is not open for "use of the <br />general public" and thus not a "highway" or <br />"roadway." <br />lastcse <br />With respect to public use of the proposed <br />access road, the city explains that the city's <br />Future Street Plan contemplates a public local <br />street between the subject property and SE <br />Yellowhammer, constructed to local street <br />standards. The city chose not to require that the <br />access street be constructed to local street <br />standards in this decision and opened to general <br />traffic, because it determined that streets within <br />the Kingswood Heights subdivision cannot <br />handle the additional traffic from development <br />on the subject property, and the number of trips <br />generated from the subject development could <br />not justify requiring intervenor to upgrade the <br />Kingswood Heights streets. Consequently, the <br />city argues, the city required dedication of right- <br />of-way necessary to construct code-required <br />access for emergency vehicles, with a condition <br />requiring dedication of additional right-of-way <br />upon improvement to the streets within the <br />Kingswood Heights subdivision. <br />According to the city, requiring such <br />limited access does not mean that the access <br />street is not a "roadway" or "highway" as those <br />terms are defined in the Oregon Vehicle Code. <br />The city contends that nothing in the relevant <br />statutes or the Oregon Vehicle Code requires <br />unrestricted public access in order for the street <br />to constitute a "roadway" as that term is used in <br />ORS 223.930(1). Once a right-of-way is <br />acquired by a public. entity with road <br />jurisdiction, the city argues, that entity has the <br />broad authority to impose restrictions on its use <br />to protect the interests and safety of general <br />_5_ <br />PC Agenda - Page 13 <br />