• <br />• <br />The circumstances regarding the Oakleigh Lane right-of-way in this case present the same <br />questions that LUBA resolved in Butte Conservancy v. City of Gresham, 52 Or LUBA 550 (2006). <br />LUBA stated: <br />"In our view, it is sufficient for the local government in such circumstances to <br />(1) adopt findings that establish that fulfillment of the condition of approval is not <br />precluded as a matter of law, and <br />(2) ensure, in imposing the condition of approval, that the condition will be fulfilled <br />prior to final development approvals or actual development." <br />(Found on page 6 of the Butte Conservancy LUBA decision, provided as Attachment <br />C; emphasis added) <br />Neither the Hearings Official's decision (nor the Planning Commission's prior decision) <br />satisfied either of these requirements.12 <br />Instead, the Hearings Official (and Planning Commission) appear to have mistakenly <br />assumed that the constitutional limitations that apply to exactions also constrain what <br />requirements a City can impose regarding physical conditions and/or infrastructure to ensure <br />the public's safety. <br />Commissioners should note the following point well, because it has been misunderstood <br />throughout all the decision-makers' findings: <br />Requiring a minimum width for the right-of-way of the only public street adjacent to and <br />serving the development is not the same as exaction of a portion of right-of-way from an <br />applicant's development property. <br />To understand this point better, consider a hypothetical case where the City determined that <br />adequate wastewater conveyance could be provided only through the use of a larger pipe than <br />the existing pipe adjacent to, and serving, a PUD site. The City could clearly require that a <br />sufficient wastewater system be in place. And while the City could not impose on the developer <br />a burden of installing a new pipe that exceeded the proportionality limitations of Dolan v. City of <br />Tigard, 512 US 374 (1994), the City also could not approve a PUD development that would be <br />served by an inadequate wastewater system that could potentially create unsafe conditions on <br />either the applicant's property or the neighbors'. The City's reasonable and necessary action <br />would be to require a sufficiently large pipe to be in place as a requirement for final approval. <br />12 In its Final Opinion and Order, LUBA merely regurgitated the City's response to this issue claiming that constitutional limitations <br />placed on the City by the Fifth Amendment to the U.S. Constitution allow the city to require dedication of at most one-half of <br />Oakleigh Lane and, therefore, Conte had not demonstrated that EC 9.6870 or any other authority allows the city to require <br />Oakleigh Meadows to dedicate more than one-half of Oakleigh Lane. (LUBA Decision at 35-36.) LUBA misunderstood Mr. <br />Conte's argument and erred by accepting the City's framing of the issue. <br />Conte never asserted any argument that the City had to require the applicant to dedicate more property. Instead, Conte noted <br />that, the only evidence in the record indicated that the full 45-foot right-of-way was required in order to provide safe access. <br />Conte's argument was not that the applicant had to dedicate all of the 25 feet necessary to provide the required 45-foot right-of- <br />way. Conte argued simply that the City had to adopt a condition of approval that would ensure Oakleigh Lane would have the <br />required 45 feet of right-of-way. <br />Trautman Appeal Testimony PDT 13-1 Page 14 July 27, 2015 <br />