CONSERVANCY v. CITY OF GRESHAM. LUBA No. 2006-084 (Or. LUBA 9/15/2006) (Or. LUBA, <br />"No building or structure or land shall be used <br />and no building or structure shall hereafter be <br />erected, altered or enlarged in the subdivision except <br />for single-family dwellings and accessory buildings <br />consisting of garages, carports, private green houses, <br />swimming pools or other type of home recreational <br />facilities and temporary structures for uses incidental <br />to. construction work which shall be removed upon <br />completion or abandonment of the construction." <br />Petition for Review App. 30. <br />2, The city notes that petitioners are not residents of <br />Kingswood Heights subdivision, and do not have the <br />ability to enforce the terms of the CC&Rs. <br />3. Petitioners do not dispute the city's finding that <br />following a lawful condemnation the use of the <br />property for an access road would not be subject to <br />the CC&R restrictions. At oral argument, petitioners <br />questioned whether condemnation is even <br />theoretically possible, since intervenor owns the lot <br />and presumably would dedicate (in fact is required to <br />dedicate) the right-of-way to the local government <br />with jurisdiction, in this case the county. We <br />understand petitioners to suggest that condemnation <br />is a last resort that is reached only if voluntary <br />dedication or conveyance is not possible, and here, it <br />is clear that intervenor is willing and indeed is <br />required to dedicate or convey the right-of-way. We <br />further understand petitioners to argue that if the <br />right-of-way is dedicated or conveyed in some <br />manner rather than via eminent domain, then the <br />CC&R restrictions would continue to apply to <br />dedicated property. Because condemnation will likely <br />never occur, we understand petitioners to argue, the <br />theoretical possibility of employing eminent domain <br />to avoid the CC&R restriction fails to establish that it <br />is "feasible" to fulfill the condition of approval. <br />Petitioners are probably correct that the city's <br />exercise of eminent domain is unlikely. However, the <br />city has adequately demonstrated that it has the legal <br />authority to condemn the disputed right-of-way and <br />thus avoid the legal impediment identified by <br />petitioners. That demonstration is sufficient to satisfy <br />the feasibility requirement of Meyer and Rhyne, as <br />construed here, even if the city is unlikely in fact to <br />ever exercise that condemnation authority. <br />4.ORS 223.930(1) provides, in relevant part: <br />"Any city may construct, improve, maintain and <br />repair any street the roadway of which, as defined in <br />the Oregon Vehicle Code, is along or along and <br />partly without, or partly within and partly without the <br />r <br />lastcase <br />boundaries of the city and may acquire, within and <br />without the boundaries of such city, such rights of <br />way as may be required for such street by donation or <br />purchase or by condemnation in the same manner as <br />provided in ORS 223.005 to 223.105 * * <br />5. CDC 5.0232 has since been amended or deleted. <br />6. The city's findings state, in relevant part:. <br />* * The removal of any trees for purposes of <br />building specific homes within the proposed <br />subdivision is not to be included in determining <br />whether the Applicant's development will result in a <br />'clear cutting.' The removal of any trees for a home is <br />not authorized by approval of this Application and is <br />subject to CDC 9.1010(B) when a building permit is <br />sought. * * * <br />* * The Appellants did not raise the issue of <br />including tree removal from individual homes sites at <br />LUBA. The LUBA remand required a tree survey of <br />the entire site. The tree survey of the entire site <br />establishes that more trees will remain after the tree <br />removal than was estimated by the original sample <br />tree survey. The tree survey of the entire site supports <br />the original decision that approval of this Application <br />does not result in clear cutting. Not having raised the <br />issue of tree removal from individual home sites at <br />LUBA, Appellants have waived any opportunity to <br />raise the issue now." Record 15 (underline in <br />original; footnote omitted). <br />7. CDC 9.1010(B) provides, in relevant part: <br />"Removal of Regulated Trees: Removal of <br />Regulated Trees as defined in Section 3.0010 shall be <br />reviewed under Type II procedures for compliance <br />with the standards of Sections 9.1010-9.1012, <br /> <br />"(2) Regulated trees located within 10 feet of the <br />outer edge of the outline of a proposed single family <br />residence or related site improvements may be <br />removed without a separate or additional <br />development permit after issuance of the building <br />permit for the proposed residence. When additional <br />trees are to be protected on the site outside the <br />building envelope, a tree protection plan as approved <br />by the City shall accompany the building plans and <br />shall be enforced during all construction activities on <br />the site. Mitigation in accordance with an approved <br />mitigation plan for lost perimeter trees shall be <br />completed or guaranteed prior to Final Inspection." <br />-8- <br />PC Agenda Page 16 <br />