OAR 690-005-0040: Resolution of Land Use Disputes

(1) The Department shall attempt to prevent disputes over land-use-related issues through early and frequent coordination with local governments. (2) Land use disputes as described in OAR 690-005-0015(6)(b) which involve water use approvals identified in OAR 690-005-0025(1) and (7) shall be: (a) Recognized through the information submittal requirements and comment and protest opportunities of ORS Chapter 537; and (b) Subject to the procedures of section (3) through (7) of this rule to the extent practical under the timelines and processes established in ORS Chapter 537. (3) Except as described in section (2) of this rule, for any other land use dispute as described in OAR 690-005-0015(6)(b), the Department shall notify any affected Department applicant of the dispute and provide the following in writing to the planning director, other planning official, or the governing body of the affected local government: (a) Reasons for the Department’s proposed action; (b) Those statutes, rules or land use planning goals authorizing the Department’s action; (c) Alternatives to the Department’s action or modifications of the proposed action, if any, which would result in compatibility; (d) A proposal to discuss and resolve the dispute; and (e) A request that the planning director, other planning official, or the governing body of the affected local government provide the Department with written information relating to the land use dispute. The written information shall be submitted to the Department within 30 days, unless otherwise specified by the Director, and shall describe: (A) The specific Department action which would not be compatible with an acknowledged comprehensive plan; (B) Comprehensive plan policies or provisions, or land use regulations which the planning director, other planning official, or the local governing body believe specifically apply to and preclude the Department action; (C) General provisions, purposes, or objectives in the comprehensive plan which would be substantially affected by the Department action; and (D) Changes or alternatives to the Department’s action that would result in compatibility. (4) Based on the results of activities described in sections (1) and (2) of this rule, the Department shall consider, and undertake as appropriate, one or more of the following to satisfy compatibility requirements and the Department’s statutory mandates: (a) Select an alternative action, including taking no action; (b) Modify the proposed action to achieve compatibility; (c) Apply for local land use approvals, including plan and land use regulation amendments, and explain why periodic review is not available to or sufficient for the Department in proposing the action; (d) Appeal denial of local land use approvals to the appropriate bodies; (e) Request necessary comprehensive plan amendments during periodic review; (f) Request informal LCDC mediation, if subsections (3)(a) through (e) of this rule do not resolve the dispute; or (g) Request formal LCDC determination of compatibility as provided in OAR 660-030-0070(7), if subsections (3)(a) through (e) of this rule do not resolve the dispute. (5) If actions described in section (3) of this rule do not resolve the dispute, the Commission shall: (a) Select an alternative action, including taking no action; (b) Modify the action to achieve compatibility; (c) Proceed with the action, adopting written findings which include the following: (A) A description of the dispute and measures taken in attempting to resolve the dispute; (B) A citation of those statutes and specific statewide planning goal requirements compelling the Department to take the disputed action; and (C) A statement explaining how the action fulfills statutory obligations and complies with statewide land use planning goals. (d) Inform the affected local government, any affected Department applicant, and the Department of Land Conservation and Development of the action taken, transmitting copies of any findings made under section (4)(c) of this rule. (6) In the event of a land use dispute as provided in OAR 690-0050-015(6)(c), the Department shall: (a) Notify the planning departments of affected local governments in writing of the conflict between a local action and Department policies, plans, or programs; and (b) Cite the statutes and rules which apply to, or are substantially affected by, the local action; (c) Suggest modifications or alternatives to the local action which would conform to Department policies, plans, or programs; and (d) Offer to schedule discussions with the appropriate local planning official to resolve the dispute. (7) If procedures described in section (5) of this rule do not resolve the dispute, the Department may: (a) Request LCDC mediation or enforcement; (b) Pursue local government conformance with Department policies, plans, or programs by: (A) Applying for comprehensive plan amendments; (B) Participating in periodic review; or (C) Applying the provisions of ORS 536.360 through 536.400.