CONSERVANCY v. CITY OF GRESHAM. LUBA No. 2006-084 (Or. LUBA 9115/2006) (Or. LU3A, <br />public, including closing a public street to travel <br />except as needed for emergency access. The city <br />argues that such a restricted public street is as <br />much a "roadway" for purposes of the relevant <br />statues as are unrestricted public streets. <br />Finally, the city argues that even if ORS <br />223.930(1) does not authorize condemnation in <br />the present case, other statutes may. The city <br />first cites to ORS 225.320 and 225.330, <br />Page 11 <br />removal of trees which would result in clear <br />cutting is prohibited on land within the <br />[HPCD]." 5 Similarly, CDC 9.1010(F) provides <br />that "[a]ll tree removal that would result in clear <br />cutting on slopes in excess of 15% is <br />prohibited." CDC 3.0010 defines "clear cutting" <br />as: <br />"Any tree removal which leaves fewer than <br />an average of one tree per 1,000 square feet of <br />lot area, well-distributed throughout the entirety <br />of the site. * * <br />which authorize condemnation of property <br />within or without the city for "fire protection" <br />facilities. According to the city, the access road <br />is intended to provide access for fire trucks and <br />alternative public evacuation routes in case of <br />wildland fires, and thus would qualify as a "fire <br />protection" facility. Finally, the city cites to <br />ORS 223.005, which grants the city broad <br />authority to appropriate any private real estate <br />within or without city limits for "any public or <br />municipal use or for the general benefit and use <br />of the people of the city[.]" We agree with the <br />city that under one statute or another the city <br />likely has the authority to condemn the disputed <br />right-of-way, if that becomes necessary. <br />Certainly, petitioners have not demonstrated that <br />any uncertainty with respect to the city's <br />condemnation authority is such that it can be <br />said that fulfillment of the condition of approval <br />requiring dedication and construction of the <br />access road is precluded as a matter of law. The <br />city appropriately drafted that condition in a <br />planner that is sufficient to ensure that <br />fulfillment of the condition will occur prior to <br />final development approval. If for one reason or <br />another the condition is unsatisfied, intervenor <br />will not be able to obtain final subdivision <br />approval. We do not understand Meyer, Rhyne <br />or Stoloff to require more, under the present <br />circumstances. <br />- The first assignment of error is denied. <br />SECOND ASSIGNMENT OF ERROR <br />City of Gresham Community Development <br />Code (CDC) 5.0232 provides that "[a]ny <br />lastease <br />Page 12 <br />CDC 9.1011 requires the applicant for tree <br />removal to submit a tree survey of regulated <br />and/or significant trees on site. Further, the code <br />defines "tree survey" as a "drawing that provides <br />the location of all trees" of a prescribed <br />diameter. Intervenor initially presented a tree <br />survey based on a one-acre sample of,the subject <br />property, and the city accepted that survey. We <br />remanded the city's initial decision, however, <br />concluding that under the above code definitions <br />and provisions the county erred in determining <br />that proposed development did not involve <br />"clear-cutting" based on a one-acre sample <br />rather than a survey of all trees on the property. <br />On remand, intervenor submitted a survey <br />depicting all trees on the subject property, and <br />an analysis indicating that removal of the <br />proposed 1800 trees for roads and utilities would <br />leave approximately 1.07 trees per 1,000 square <br />feet of gross site area. The city accepted that <br />survey and analysis. Petitioners argued below, <br />and argue on appeal, that intervenor's analysis <br />erroneously considers only trees removed for <br />roads and utilities, and fails to consider trees that <br />will be removed in the buildable area of <br />individual lots for dwellings. The city adopted <br />findings responding that (1) petitioners could <br />have but failed to raise this issue in the previous <br />appeal, and therefore the issue is waived, and <br />(2), in any case, the CDC requires consideration <br />only of trees that must be removed for the <br />development proposed, not subsequent <br />development authorized under individual <br />building permits, which are separately governed <br />_6- <br />PC Agenda - Page 14 <br />