660-030-0070 Agency Compatibility with Acknowledged Comprehensive Plans (1) A state agency shall be as part of its coordination program under OAR 660-030-0060 adopt appropriate rules and procedures to assure that the agency’s land use programs are compatible with acknowledged comprehensive plans. Such procedures also shall identify the steps the agency will utilize to resolve any land use disputes between the agency and a local government. (2) An agency can achieve compatibility in several ways depending upon the nature of its land use program and the organization and specificity of the acknowledged comprehensive plan in question. Each agency shall incorporate one or more of the following approaches as appropriate into its own compatibility procedures pursuant to section (4) of this rule. An agency program or action is compatible when the agency: (a) Receives land use approval from the local government where the acknowledged comprehensive plan contains requirements or conditions specifically applicable to the agency’s land use program or action thereunder; or (b) Determines, based on the response to written notice provided to local government, the results of meetings held pursuant to subsection (4)(a) of this rule, or other equivalent steps as described in the agency’s certified coordination program, that the acknowledged comprehensive plan’s general provisions will not be substantially affected by the agency’s program or action; or (c) Determines based on the results of steps taken under subsection (2)(b) of this rule, that the acknowledged comprehensive plan contains no specific or general provisions applicable to the agency’s program or action. In this situation, however, an agency shall comply with the statewide planning goals as provided in OAR 660-030-0065(3)(c); or (d) Utilizes in conjunction with a local government, the provisions of this division and the agency’s coordination program, where certified, to resolve a land use dispute involving the agency’s land use program or action and the acknowledged comprehensive plan; or (e) Issues a permit in accordance with the requirements of OAR chapter 660, division 31. (3) In carrying out the compatibility requirements of this rule, a state agency is not compatible if it approves or implements a land use program or action that is not allowed under an acknowledged comprehensive plan. However, a state agency may apply statutes and rules which the agency is required by law to apply, to deny, condition or further restrict an action or program, provided it applies those statutes and rules to the uses planned for in the acknowledged comprehensive plan. (4) Each state agency’s compatibility procedures for assuring compatibility with acknowledged comprehensive plan, including the resolution of land use disputes, shall at a minimum provide for the following actions: (a) Meetings between the agency and the local government’s planning representatives to discuss ways to make the agency’s land use program or action compatible; (b) Identification by the agency of alternative actions or modifications to the agency’s program or action; (c) Application by the agency for the necessary local land use approval, including any needed plan and land use regulation amendments; (d) Pursuit of appropriate appeal by the agency of a denial of its request for local land use approval; and (e) Request by the agency for the needed local land use approval during periodic review (OAR chapter 660, division 19) or an explanation by the agency why periodic review is not available or sufficient to respond to the agency’s request. (5) A state agency, or a local government may request informal LCDC mediation if the agency determines after pursuing procedures as appropriate under section (4) of this rule that there is a need to proceed with its proposed action or program which would be incompatible with the acknowledged comprehensive plan. LCDC mediation may proceed as mutually agreed by LCDC, the affected state agency and the local government. (6) If, after pursuing any of the procedures required by section (4) of this rule that are appropriate under the circumstances, an agency contends that its proposed program or action would be compatible with an acknowledged comprehensive plan, but the local government contends that the program or action would not be compatible, the agency shall proceed as provided in sections (7) through (12) of this rule. (7) Each agency’s compatibility procedure shall provide for Commission compatibility determination as a means for resolving disagreement between the agency and a local government regarding compatibility of the agency’s proposed land use program or action with an acknowledged comprehensive plan. (8) Commission compatibility determination shall only be requested if the state agency and local government remain in dispute after taking any steps in section (4) of this rule that are appropriate under the circumstances. (9) The Commission may commence a compatibility determination upon written request from the chief official or governing authority of the agency, the local government or both. Compatibility determination shall include the following: (a) The Commission may designate a hearings officer. The hearings officer shall compile a written assessment of the compatibility dispute. The assessment shall document the positions of each party, including a summary of the background of the dispute, identification of major issues and contentions and any other facts relevant to the case. The hearings officer shall conduct hearings as he or she determines are appropriate under the circumstances to aid in preparation of the report on the compatibility dispute; (b) The hearings officer’s report shall be provided to the Commission, the affected state agency, the local government and other persons who request a copy in writing; (c) The Commission shall review the hearings officer’s report at a regular or special meeting after providing a reasonable amount of time for review by the agency, the local government and other persons wishing to examine the report. Following any allowed testimony from the parties or other interested persons, the Commission shall determine whether the agency’s proposed program or action is compatible with the acknowledged comprehensive plan; and (d) The Department shall prepare a written record of the Commission’s determination of compatibility. The record of the Commission’s compatibility determination together with supporting findings and documents shall be provided to the state agency, the local government and any person requesting a copy in writing. (10) The Department shall provide notice of opportunity for participation in and obtaining the results of all Commission determinations of compatibility to those who request such notice in writing. (11) A compatibility determination shall have no final effect unless the affected agency proceeds and adopts the Commission’s compatibility determination as its own. If the compatibility determination adopted by the affected agency is not the same as the Commission’s determination, under subsection (9)(c) of this rule, the Commission’s determination, findings and record shall be included in the record of the agency’s action. (12) If the agency’s proposed program or action would be incompatible with the acknowledged comprehensive plan or the agency elects not to proceed as provided in sections (7) through (12) of this rule, the agency may pursue any of the following options: (a) Take no action; or (b) Modify its proposal to the extent needed to achieve compatibility with the acknowledged comprehensive plan. Statutory/Other Authority: ORS 183 & 197 Statutes/Other Implemented: ORS 197.040 & 197.180 History: LCDC 5-1986, f. & ef. 12-24-86