1 FIRST ASSIGNMENT OF ERROR <br />2 In order to gain approval of the requested variance for culs-de-sac longer than 200 <br />3 feet, intervenor proposed and the city approved a secondary access point that would extend <br />4 south of the PUD through a residential lot in the adjoining Kingswood Heights subdivision, <br />5 which is within unincorporated Clackamas County, and connect to SE Yellowhammer Road. <br />6 Accordingly, the city imposed Condition of Approval 7 requiring that the applicant submit as <br />7 part of final plat documents: (1) a 20-foot wide right of way or easement across the <br />8 residential lot within the Kingswood Heights subdivision, dedicated to the county, (2) <br />9 construction plans for the access, and (3) a county street construction permit. <br />10 Before LUBA, petitioners argued that there was no evidence in the record that it was <br />11 "feasible" to construct the proposed secondary access, given that Covenants, Conditions, and <br />12 Restrictions (CC&Rs) governing the Kingswood Heights subdivision restrict all use of <br />13 residential lots to single-family dwellings and accessory buildings.I According to <br />14 petitioners, it is clear under the Kingswood Heights CC&Rs that use of a residential lot to <br />15 construct a street or other access for a neighboring subdivision is prohibited. We remanded <br />16 the city's initial decision to address this issue. <br />17 On remand, the city adopted findings concluding in relevant part that it is "feasible" <br />18 to construct the access road either because (1) the CC&Rs can be reasonably interpreted to <br />19 allow roads that provide access to residential uses and (2) in any case, the city has the legal <br />20 authority to condemn the right-of-way to provide secondary access notwithstanding the <br />21 CC&Rs. Petitioners challenge those conclusions, arguing that the CC&Rs are unambiguous <br />1 The Kingswood Heights subdivision restrictions include the following: <br />"No building or structure or land shall be used and no building or structure shall hereafter be <br />erected, altered or enlarged in the subdivision except for single-family dwellings and <br />accessory buildings consisting of garages, carports, private green houses, swimming pools or <br />other type of home recreational facilities and temporary structures for uses incidental to <br />construction work which shall be removed upon completion or abandonment of the <br />construction." Petition for Review App. 30. <br />Page 3 <br />