THE DIFFERENCE BETWEEN CONFORMANCE & EXACTION <br />In Butte II, the City of Gresham argued that the question of "feasibility" involved <br />primarily a "legal impediment" (i.e., objection to condemnation by the property owner). <br />Gresham then argued that determination of whether such condemnation proceedings would be <br />lawful (and thus, gaining the necessary right-of-way was "possible") was a legal matter that <br />could be resolved only by the owner contesting the condemnation in circuit court proceedings. <br />In other words, Gresham argued that while Gresham couldn't prove the solution was feasible, <br />the opponents couldn't prove the solution was infeasible. <br />LUBA agreed with Gresham with respect to a "legal impediment": <br />"We generally agree with the city that the Meyer and Rhyne feasibility analysis must be <br />applied somewhat differently when the "problem" identified at the first stage of a two- <br />step approval process is an alleged legal impediment to fulfilling a condition of approval <br />requiring facilities necessary for the proposed development, rather than a technical, <br />engineering or similar issue." <br />LUBA also set a very low bar for the City to meet the "feasibility" requirement with respect <br />both to future right-of-way and road improvements: <br />"Certainly, petitioners [opponents] have not demonstrated that any uncertainty with <br />respect to the city's condemnation authority is such that it can be said that fulfillment of <br />the condition of approval requiring dedication and construction of the access road is <br />precluded as a matter of law." <br />In the simplified Oakleigh Lane example that I use here, I'm assuming no insurmountable <br />physical obstacles would prevent adding a sidewalk to Oakleigh Lane. Therefore, the "solution" <br />in this example would require getting the necessary dedication(s) of right-of-way and <br />improving the road to add a sidewalk. <br />It's important to understand that all three conditions imposed by Gresham applied to a <br />future street across property that was not controlled by the applicant. The Oakleigh Lane <br />example similarly would require right-of-way or easements for a future sidewalk across <br />properties that are not controlled by the applicant. LUBA was aware in Butte II that such a <br />situation might ultimately preclude development of the proposed PUD because the required <br />right-of-way might not be obtained. LUBA concluded on this issue: <br />"The city appropriately drafted that condition in a manner that is sufficient to ensure <br />that fulfillment of the condition will occur prior to final development approval. If for <br />one reason or another the condition is unsatisfied, intervenor will not be able to obtain <br />final subdivision approval." <br />LUBA was not concerned that the PUD project might be "killed" by the imposed requirement <br />for a right-of-way that, from appearances, would be difficult or impossible to obtain. <br />"possible" that the condition can be fulfilled. Further, as LUBA elaborates on their analysis, following <br />the citation to Meyer in Butte II, LUBA explains "possible" as "(1) not precluded by law" and the text <br />that immediately follows appears to explain "likely" as " (2) ensure * * the condition will be fulfilled <br />Page 17 <br />