1 and clearly would prohibit the proposed access road, and that the city lacks the legal <br />2 authority to condemn the right-of-way necessary to construct the road. <br />3 A. Feasibility <br />4 As an initial matter, the city argues that the legal requirement that local governments <br />5 address the feasibility of compliance with approval criteria should be applied differently <br />6 where, as here, the issue raised regarding the feasibility of compliance largely involves a <br />7 legal question and the courts, not the city, have jurisdiction in the final analysis to resolve <br />8 that question. The city recognizes that, in a line of cases based on Meyer v. City of Portland, <br />9 67 Or App 274, 678 P2d 741 (1984) and Rhyne v. Multnomah County, 23 Or LUBA 442 <br />10 (1992), the Court and LUBA have held that, in a two-stage approval process such as <br />11 subdivision approval, where a problem is identified that raises concerns whether proposed <br />12 development can comply with applicable approval criteria, the local government may, among <br />13 other options, adopt findings demonstrating that solutions to the identified problem are <br />14 "feasible," i.e., "possible, likely and reasonably certain to succeed." Meyer, 67 Or App at <br />15 280, n 5. In Rhyne, we explained that: <br />16 "Assuming a local government finds compliance, or feasibility of compliance, <br />17 with all approval criteria during a first stage (where statutory notice and <br />18 public hearing requirements are observed), it is entirely appropriate to impose <br />19 conditions of approval to assure those criteria are met and defer responsibility <br />20 for assuring compliance with those conditions to planning and engineering <br />21 staff as part of a second stage. * * * <br />22 "Where the evidence presented during the first stage approval proceedings <br />23 raises questions concerning whether a particular approval criterion is satisfied, <br />24 a local government essentially has three options potentially available. First, it <br />25 may find that although the evidence is conflicting, the evidence nevertheless <br />26 is sufficient to support a finding that the standard is satisfied or that feasible <br />27 solutions to identified problems exist, and impose conditions if necessary. <br />28 Second, if the local government determines there is insufficient evidence to <br />29 determine the feasibility of compliance with the standard, it could on that <br />30 basis deny the application. Third, * * * instead of finding that the standard is <br />31 not met, it may defer a determination concerning compliance with the <br />32 standard to the second stage. In selecting this third option, the local <br />33 government is not finding all applicable approval standards are complied <br />Page 4 <br />