THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION <br />conditions of approval to assure those criteria are met and defer responsibility <br />for assuring compliance with those conditions to planning and engineering staff <br />as part of a second stage. * * * <br />'Where the evidence presented during the first stage approval proceedings raises <br />questions concerning whether a particular approval criterion is satisfied, a local <br />government essentially has three options potentially available. First, it may find <br />that although the evidence is conflicting, the evidence nevertheless is sufficient to <br />support a finding that the standard is satisfied or that feasible solutions to <br />identified problems exist, and impose conditions if necessary. Second, if the local <br />government determines there is insufficient evidence to determine the feasibility <br />of compliance with the standard, it could on that basis deny the application. <br />Third, * * * instead of finding that the standard is not met, it may defer a <br />determination concerning compliance with the standard to the second stage. In <br />selecting this third option, the local government is not finding all applicable <br />approval standards are complied with, or that it is feasible to do so, as part of the <br />first stage approval (as it does under the first option described above). Therefore, <br />the local government must assure that the second stage approval process to <br />which the decision making is deferred provides the statutorily required notice <br />and hearing * * 23 Or LUBA at 447-48 (footnotes omitted)." <br />Eugene's PUD approval process is just such a "two-stage approval process" as covered above, <br />and thus LUBA's findings are directly applicable. <br />Note the first standard for "feasible" that was established in Meijer - the solution <br />imposed by conditions of approval must be "possible." Applying this to the Oakleigh Lane <br />example, sidewalks for the entire length are physically possible because the land is flat, level <br />and has no insurmountable impediments. Further, the City of Eugene has the legal authority to <br />potentially obtain any additional right-of-way, where necessary.',, <br />If the required right-of-way were dedicated and a new sidewalk were constructed beside <br />Oakleigh Lane, the resulting street configuration would be "reasonably likely to succeed" in <br />making the street safe for pedestrians." (In other cases, the Meijer requirement "to succeed" has <br />been expressed as the condition needing to be "sufficient" to achieve conformance with the <br />approval criterion.) <br />Further on in Butte IT, LUBA used clearer language to express the Meyer requirement for <br />a condition to be "likely," as follows: "it is sufficient for the local government [to] * * * ensure, in <br />imposing the condition of approval, that the condition will be fulfilled prior to final <br />development approvals or actual development."12 <br />to Of course, such an attempt could be opposed and potentially blocked by residents' legal actions. But <br />the criterion is that fulfillment of a condition of approval be "possible," not "certain." <br />Again, keep in mind that I am simplifying the case; and simply adding one sidewalk might not be an <br />adequate solution. <br />12 It's apparent that the use of "likely" in Meyer has some meaning other than "highly probable that the <br />condition will be fulfilled" because in the same sentence, Meyer sets the much lower threshold of <br />Page 16 <br />