1 should only be required to "determine that the legal position is warranted by existing law or <br />2 is a nonfrivolous argument based on existing law." City of Gresham's Response Brief 10-11. <br />3 The city argues that such a test would be similar to the test that LUBA has applied when <br />4 local land use standards expressly require compliance with state agency requirements or that <br />5 the applicant secure a state agency permit. In those cases, the city argues, LUBA has held <br />6 that the local government is not required to establish that the state agency requirements can <br />7 in fact be satisfied. Instead, the local government need only determine that the necessary <br />8 agency permit is "available" and that the applicant is not precluded from obtaining such <br />9 agency permits as a matter of law. Wetherell v. Douglas County, 44 Or LUBA 745, 755-56 <br />10 (2003); Sam Miller v. City of Joseph, 31 Or LUBA 472, 478 (1996); Bouman v. Jackson <br />11 County, 23 Or.LUBA 628, 646-47 (1992). <br />12 We generally agree with the city that the Meyer and Rhyne feasibility -analysis must <br />13 be applied somewhat differently when the "problem" identified at the first stage of a two-step <br />14 approval process is an alleged legal impediment to fulfilling a condition of approval <br />.15 requiring facilities necessary for the proposed development, rather than a technical, <br />16 engineering or similar issue. In such circumstances, where neither the local government nor <br />17 LUBA have jurisdiction to resolve the legal question, and that legal question must be <br />18 resolved in a particular way to allow the condition to be fulfilled so that an applicable <br />19 approval standard will be satisfied, neither the local government nor LUBA need engage in a <br />20 detailed or definitive legal analysisI_n our view, ituis sufficient for the.' local goveininent in,: <br />21 such:; circurristances to Y(1)_ adopt iiigs~tliat establisfi that fulfillment _of the condition of: <br />22 approval is not precluded as amatterof law, and (2) ensure, m imposing the condition of <br />23 approval; that the condition will be fiilfilled priorto fipal development approvals of actual <br /> <br />24 devei pjj ent__- l <br />25 Although we did not couch it. in those terms, we applied a similar approach in a <br />26 recent case with very similar facts. In Stoloff v. City, of Portland, 51 Or LUBA 560 (2006), <br />Page 6 <br />228 <br />l <br />• <br />• <br />348 <br />