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PARKS AND RECREATION DEPARTMENT
DIVISION 70
STATE AGENCY COORDINATION
736-070-0010
Purpose
(1) The purpose of these rules is to establish the procedures used by the Parks and Recreation Department in implementing the provisions of its State Agency Coordination Program, as required by ORS 197.180 and OAR Chapter 660, Division 30 and 31. The State Agency Coordination program will assure that the Department's land use programs comply with the statewide land use planning goals and are compatible with acknowledged city and county comprehensive plans and land use regulations. It is not the intent of these rules to prevent either the Parks and Recreation Commission or the Parks and Recreation Department from carrying out their statutory responsibilities.
(2) Division 70 shall control over any related or inconsistent rule provisions relating to statewide goal compliance and comprehensive plan compatibility in OAR Chapter 736, Division 2 through 55.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: PR 3-1991, f. & cert. ef. 3-8-91
736-070-0020
Definitions
As used in these rules:
(1) "Acknowledged Comprehensive Plan" means a city or county comprehensive land use plan and land use regulations or plan or regulation amendment which complies with the goals as provided in ORS 197.251, 197.640 to 197.649 and 197.625.
(2) "Affected Local Government" means a city or county government that has land use planning jurisdiction.
(3) "Commission" means the Parks and Recreation Commission.
(4) "Compatibility" means that the Department has taken actions pursuant to this division, including applicable procedures in the Department's State Agency Coordination Program, and there are no remaining conflicts between the Department's land use action and the affected acknowledged comprehensive plan(s).
(5) "Department" means the Parks and Recreation Department.
(6) "Director" means the Director of the Parks and Recreation Department.
(7) "DLCD" means the Department of Land Conservation and Development.
(8) "Land Use Action" means a Department rule, program or activity which has been determined to have a significant effect on land use as defined by OAR 660-030-0005(2).
(9) "Land Use Dispute" means a difference of opinion between the local government and the Department as to the compatibility of a proposed Department action with the provisions of an acknowledged comprehensive plan.
(10) "Local Government" means an incorporated city or county.
(11) "Major Development Projects and Major Park Facilities" means those Department construction activities that change the existing land use or significantly change the intensification of the existing land use.
(12) "SAC Program Document" means the Department's State Agency Coordination Program document developed pursuant to ORS 197.180.
(13) "Statewide Goals" means Oregon's Statewide Planning Goals adopted by the Land Conservation and Development Commission pursuant to ORS Chapter 197.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: PR 3-1991, f. & cert. ef. 3-8-91
736-070-0030
Applicability
This division is applicable to the following Department land use actions in accordance with OAR 660-030-0005:
(1) Adoption or amendment of State Park Master Plans.
(2) Construction of major development projects or major park facilities.
(3) Tree removal on Department property within the urban growth boundaries (UGB's).
(4) Awarding of federal Land and Water Conservation (L&WCF) grants for major development projects.
(5) Approval of development proposals within the State Scenic Waterway boundaries.
(6) Adoption or amendment of State Scenic Waterway Management Plans.
(7) Designation of State Recreation Trails.
(8) Construction of Recreation Trails not on Department property.
(9) Issuance of Ocean Shore Improvement Permit.
(10) Issuance of State Archaeological Excavation Permit on, public lands non-federal.
(11) Any other Department program subsequently determined to affect land use pursuant to ORS 197.180 and OAR 660-030-0075.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: PR 3-1991, f. & cert. ef. 3-8-91
736-070-0040
Compliance with the Statewide Planning Goals and Compatibility with Acknowledged Comprehensive Plans and Land Use Regulations
Prior to undertaking any land use action listed in OAR 736-070-0030, the Department will use the following procedures:
(1) Except where it is necessary for the Department to adopt direct findings of compliance with the statewide planning goals, in the manner set forth in section (4) of this rule, the Department shall achieve goal compliance by acting compatibly with acknowledged comprehensive plans and land use regulations.
(2) An action within a land use program of the Department is considered by the Department to be in compliance with the statewide planning goals, when such action is compatible with the acknowledged comprehensive plan and land use regulations of the applicable local governing body.
(3) The three types of compatibility procedures to be used by the Department and the Department land use actions to which they apply are as follows:
(a) Type I Procedure:
(A) The Department shall apply for and obtain the necessary local land use approvals or compatibility determinations. If more than one local government has jurisdiction related to a Department land use action, an approval or compatibility determination will be requested from each affected local government;
(B) If the Department is informed by a local government that a proposed Department land use action is or will be incompatible with the affected comprehensive plan, the Department may withdraw the proposal, modify the proposal to address the reasons for the incompatibility, or initiate Department dispute resolution procedures as set forth in OAR 736-070-0050;
(C) Department land use actions subject to the Type I procedure are:
(i) Construction of major developments or major park facilities;
(ii) Tree removal on Department property within urban growth boundaries; and
(iii) Construction of Recreation Trails not on Department property.
(b) Type II Procedure:
(A) The Department shall make its own compatibility determination based on information and findings supplied by the applicant(s) confirming that the affected local government(s) has determined that the Department's land use action is compatible with the jurisdiction's acknowledged comprehensive plan and land use regulations;
(B) If the Department is informed by the applicant or the affected local government that the proposed Department land use action is or will be incompatible with the affected comprehensive plan, the Department will not process the application for the requested action;
(C) Department land use actions subject to the Type II procedure are:
(i) Awarding of federal Land and Water Conservation grants for major development projects; and
(ii) Issuance of Ocean Shores Development Permits.
(c) Type III Procedure:
(A) The Department shall provide written notice to the affected local government(s) prior to approving the land use actions subject to this procedure. The Department will presume that the proposed action is compatible with the applicable comprehensive plan if no response is received within the period of review established by the Department's administrative rule governing land use action;
(B) If the Department is informed by a local government that the Department's or applicant's proposed land use action is or will be incompatible with the affected comprehensive plan, the Department may withdraw the proposal, deny the proposed action, modify the proposal to address the reasons for the incompatibility, or initiate Department dispute resolution procedures as set forth in OAR 736-070-0050;
(C) Department land use actions subject to the Type III procedure are:
(i) Adoption or amendment of State Parks Master Plans;
(ii) Designation of State Recreation Trails;
(iii) Adoption or amendment of State Scenic Waterway management plans;
(iv) Issuance of State Archaeological Excavation Permits; and
(v) Review of development proposals within State Scenic Waterway boundaries.
(4) In the event that that Department pursuant to OAR 660-030-0065(3) is required to adopt compliance direct findings to comply with any of the statewide goals, the Department shall:
(a) Identify the specific statewide planning goal(s) or goal requirements the Department must address;
(b) Consult directly with the affected jurisdiction(s);
(c) Request interpretive guidance from DLCD and/or the Attorney General's office;
(d) Rely on any relevant Goal interpretations for state agencies adopted by LCDC under OAR Chapter 660; and
(e) Adopt any necessary findings to assure compliance with the statewide planning goals.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: PR 3-1991, f. & cert. ef. 3-8-91
736-070-0050
Dispute Resolution
(1) It is the intent of the Department to achieve compatibility between Department land use actions and acknowledged comprehensive plans and land use regulations whenever possible. However, a situation may occur where the Department believes its statutory mandates may prevent the Department from meeting its land use compatibility responsibility under ORS 197.180.
(2) The Department's preference for resolving a dispute over land use compatibility is to work directly with local government until resolution is accomplished. However, if no agreement can be reached, the following procedures will be used to resolve land use disputes depending upon which of the following two situations exist:
(a) In the event that the Department is informed that a proposed or pending land use action by the Department or an applicant to the Department is incompatible with a local comprehensive plan, the Department will:
(A) Request the local government to identify and/or provide copies of the applicable plan policies and land use regulations;
(B) Cite and explain reasons for the Department's proposed action(s);
(C) Suggest alternatives or modified Department actions; and
(D) Offer to meet and discuss solutions.
(b) As a result of the previous efforts to resolve the dispute the Department will do one or more of the following:
(A) Select an alternative or modified action (may include no action);
(B) Apply for local land use approval or plan amendment;
(C) Request mediation or a compatibility determination from LCDC pursuant to OAR 660-030-0075; and
(D) Proceed with action after adopting appropriate findings (i.e., direct compliance with statewide goals, and any necessary statutory obligation) that the action complies with statewide planning goals.
(c) In the event that the Department determines that a pending local land use approval or action does not conform or conflicts with Depart-ment statutes, adopted plans, programs or policies, the Department will:
(A) Notify the appropriate local jurisdiction of the potential conflict;
(B) Cite applicable statutes and rules with which the proposed local land action would conflict;
(C) Suggest possible alternatives or modifications to the proposed local land use approval or action;
(D) Offer to meet and discuss solutions; and
(E) Appeal the local government's decision if adopted.
(3) As a result of the previous actions to resolve the dispute, the Department may pursue local government conformance with Department policies, plans or programs by applying for comprehensive plan amendments, or participating in periodic review.
(4) If the dispute is not resolved through the steps in this rule, the Department may request informal mediation or a compatibility determination from the LCDC in accordance with OAR 660-030-0070.
(5) If the Department's statutory obligation remains in conflict after exhausting the appropriate procedures under sections (1) through (3) of this rule and the Department determines that it must act or the Department determines it cannot delay an action, the Parks and Recreation Commission (or its designated representative) shall adopt findings in writing explaining why it cannot act compatibly with applicable city or county comprehensive plans and land use regulations and then, adopt goal findings to assure compliance with the statewide goals in accord with OAR 660-030-0065(3).
(6) The Department shall provide a copy of the findings reference in section (4) of this rule to applicable city or county governments and upon request to other interested persons explaining the rationale for its decision.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 183.502
Hist.: PR 3-1991, f. & cert. ef. 3-8-91
736-070-0060
Assuring Goal Compliance and Acknowledged Plan Compatibility for New or Amended Land Use Programs That May Have a Significant Effect on Land Use
(1) Except as provided in section (2) of this rule, the Department shall assure that new rules and programs which qualify as land use programs, or amendments to existing land use programs, comply with the statewide planning goals and are compatible with acknowledged comprehensive plans.
(2) The Commission may choose not to apply this rule to the adoption of temporary rules and programs.
(3) The Department shall examine new rules or programs to determine if they qualify as land use programs as defined by OAR 660-030-0005(2).
(4) If new rules or programs are found to be land use programs, the Department or Commission shall amend OAR 736-070-0030, and other sections of existing rule divisions pertinent to the program as needed to assure goal compliance and compatibility with acknowledged comprehensive plans.
(5) Amendments to existing Department programs shall be examined to determine if:
(a) They have a significant affect on land use as determined by the criteria established; and
(b) Provisions of this division are sufficient for assuring that actions allowed by the amendments will comply with the goals and will be compatible with comprehensive plans; or
(c) They modify the program so that it no longer qualifies as a land use program.
(6) If needed as determined after completing the examination prescribed in section (5) of this rule, the Commission shall amend the appropriate administrative rules to assure goal compliance and compatibility with acknowledged comprehensive plans.
(7) The Department shall provide written notice of any new rule or amendment determined to be a new land use program or affect the land use status of an existing land use program to the Department of Land Conservation and Development, persons on any Department mailing lists established for land use coordination purposes, and any local governments relying on the Department for goal compliance as described in OAR 660-030-0085. The notice shall include:
(a) The date, time and location of the Department's proposed action;
(b) The manner in which written and oral comment on the proposed action can be submitted to the Department;
(c) An explanation of how the new rule or amendment qualifies as, or affects the land use status of, a land use program; and
(d) A description of any actions taken, or to be taken, pursuant to sections (3) through (6) of this rule.
(8) If no comment is received from the Department of Land Conservation and Development within the period specified in the notice described in section (7) of this rule, the Department may presume that the Department of Land Conservation and Development finds the new or amended rule or program to have satisfied requirements of ORS 197.180 and OAR Chapter 660, Divisions 30 and 31.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: PR 3-1991, f. & cert. ef. 3-8-91
736-070-0070
Coordination with Affected State and Federal Agencies and Special Districts
The Department shall coordinate with state and federal agencies and special districts on Department's projects or actions affecting land use as listed in OAR 736-070-0030 and in Section IV of the Department's State Agency Coordination Program and when determined to be necessary. Additionally, the Department will coordinate with state agencies, federal agencies, and others on land use issues of concern to the Department. Generally, this type of coordination is to provide to state agencies, federal agencies and others, the Department's perspective on the compatibility of programs or actions that others have proposed with the policies and programs of the Department. Department contacts for interagency coordination will be determined by the type of program or action, and may include the involvement of the assistant administrator of Programs and Planning, the outdoor recreation planner, a representative from the affected Department program, and regional supervisor or regional coordinator.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: PR 3-1991, f. & cert. ef. 3-8-91
736-070-0080
Cooperation and Technical Assistance to Local Governments
(1) Subject to statutory and budgetary limitations, the Department:
(a) Will provide technical assistance and information to local government;
(b) May participate in local land use planning and regulations, including review of applications for development proposals near or adjacent to State Parks resources, periodic review, plan amendments and plan updates; and
(c) May promote the adoption of state land use policies and local land use ordinances that consider the land use policies and programs of the Parks and Recreation Commission.
(2) Participation and coordination with local government with regard to the programs herein determined to affect land use will be accomplished by the Department working directly with the responsible local government.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: PR 3-1991, f. & cert. ef. 3-8-91
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