THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION <br />"Appendix 5.404 Residential Lot Access to Major and Standard Arterials <br />F. No land division shall be approved which accesses a permanent dead end <br />street system when: <br />1. The street is in excess of 200 feet, or <br />2. More than 25 units would access the street, or <br />3. The street exceeds the allowable grade in the City of Gresham Public <br />Works Standards." <br />To find that the proposed PUD conformed to the applicable criteria, Gresham imposed the <br />following condition: <br />"Condition 7. <br />In conjunction with the Phase 7 final plat submittal, the following shall be submitted: <br />a. Documents for the dedication of the 20-foot wide right-of-way or easement <br />needed for the emergency road connection between the Persimmon property <br />and SE Yellowhammer Road, dedicated to Clackamas County by separate <br />instrument. <br />b. Construction plans showing that the emergency road construction will have <br />an all-weather surface capable of supporting not less than12,500 pounds <br />point load (wheel load) and 75,000 pounds live load (gross vehicle weight). <br />c. A street construction and/or encroachment permit from Clackamas County <br />Engineering in accordance with the standards listed by Clackamas County <br />Condition 7a required an easement across the neighboring subdivision, but did not state that the <br />applicant was responsible for obtaining the easement himself. Condition 7 was entirely silent on <br />who would get the easement or how it would be gotten. <br />Opponents again argued the required easement was infeasible because of the <br />subdivision's existing CC&Rs. LUBA rejected that argument, and agreed with Gresham that the <br />required easement was not prohibited by law, regardless whether it was certain or even <br />practical for the easement to be obtained. <br />In Btttte II, LUBA went on to state: <br />"[I]n a line of cases based on Meijer v. City of Portland, 67 Or App 274, 678 P2d 741 (1984) <br />and Rhyne v. Mitltnomah County, 23 Or LUBA 442 (1992), the Court and LUBA have held <br />that, in a two-stage approval process such as subdivision approval, where a problem is <br />identified that raises concerns whether proposed development can comply with <br />applicable approval criteria, the local government may, among other options, adopt <br />findings demonstrating that solutions to the identified problem are 'feasible"' i.e., <br />'possible, likely and reasonably certain to succeed. Meijer, 67 Or App at 280, n 5. In <br />Rhyne, we explained that: <br />'Assuming a local government finds compliance, or feasibility of compliance, <br />with all approval criteria during a first stage (where statutory notice and public <br />hearing requirements are observed), it is entirely appropriate to impose <br />Page 15 <br />