1 proposed, SE Yellowhammer Road extends south of the subject property through an existing <br />2 undeveloped residential lot in adjoining Kingswood Heights subdivision. Accordingly, the city <br />3 imposed Condition of Approval 7 requiring that the applicant submit as part of final plat documents: <br />4 (1) a 20-foot wide right of way or easement for SE Yellowhammer Road, (2) construction plans for <br />5 the road, and (3) a street construction permit from Clackamas County, which has jurisdiction over <br />6 the public street SE Yellowhammer Road would connect to. <br />7 Petitioners contend, however, that use of lots within Kingswood Heights for secondary <br />8 access is prohibited by the subdivision restrictions controlling that subdivision, and therefore the <br />9 city's decision that SE Yellowhammer Road can provide necessary access is not supported by <br />10 substantial evidence. According to petitioners, the Kingswood Heights subdivision restrictions <br />11 recorded with Clackamas County prohibit the use of land within the subdivision for anything but <br />12 single-family dwellings and further restrict tree cutting without prior written consent of the <br />13 homeowners association.' Petitioners argue that there is no basis in the record to believe that the <br />14 homeowners association would approve the tree cutting necessary to construct an access road that <br />15 is not permitted within the subdivision. <br />16 Respondents first argue that alleged violations of private covenants, conditions, and <br />17 restrictions (CC&Rs) cannot serve as a basis for reversal or remand. Respondents are correct that <br />18 the fact that proposed development may be inconsistent with CC&Rs, in and of itself, provides no <br />19 basis for reversal or remand. Long v. Marion County, 26 Or LUBA 132, 136 (1993). That is <br />for the full Persimmon Phases 79 development in regards to the standards of Section <br />A5.402(F), which would allow the preclusion of a public road connection to SE Yellowhammer <br />Road. As shown * * topographic constraints are not a reason to allow a variance to this <br />standard. Therefore, the future connection to SE Yellowhammer Road is needed to comply <br />with the criteria of Section 9.0710(A)(2)-(4) and Section A5.402(F)." Record 50. <br />3 The cited restrictions state: <br />"3. No building or structure or land shall be used and no building or structure shall <br />hereafter be erected, altered or enlarged in the subdivision except for single-family <br />dwellings and accessory buildings * * Record 432. <br />"15. No trees shall be cut without the written consent of the Board of Directors of the <br />Kingswood Homeowners Association * * Record 434. <br />Page 9 <br />