justicedao/ipfs_state_laws huggingface dataset:
736-020-0005 Factors Evaluated (1) Each site on the ocean shore presents different conditions and applicants have varying project needs. Evaluations point up the relative significance of the general, scenic, recreational, safety, and other interests of the public. In acting on any application for an ocean shore permit under ORS 390.640, 390.715 or 390.725, the Department shall consider: (a) Provisions necessary to protect the affected area from any use, activity or practice that is not in keeping with the conservation of natural resources or public recreation; (b) The public need for healthful, safe, esthetic surroundings and conditions; the natural, scenic, recreational, economic and other resources of the area and the present and prospective need for conservation and development of those resources; (c) The physical characteristics or the changes in the physical characteristics of the area, and the suitability of the area for particular uses and improvements (This may include bank alignments, topography, shoreline materials and stability, width of the beach, past erosion, storm water levels, sand movement, water currents, adjoining structures, beach access, land uses, etc.); (d) The land uses, including public recreational use; the improvements in the area; the trends in land uses and improvements; the density of development; and the need for access to particular sites in the area. (e) The need for recreation and other facilities and enterprises in the future development of the area and the need for access to particular sites in the area. (2) Public opinion in response to public notice or hearings on an application shall be considered in evaluating each proposed ocean shore project. (3) Considered together, and in accordance with the intent of the Legislature, the factors listed in sections (1) and (2) of this rule assist in the overall decision for granting, an ocean shore permit, or denying, or modifying the ocean shore permit application when the level of impact is determined to be unacceptable. Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PRD 7-2000, f. & cert. ef. 5-10-00 PRD 6-1999(Temp), f. & cert. ef. 11-10-99 thru 5-8-00 1OTC 6-1978, f. & ef. 4-5-78 HC 1221, f. 4-21-70
736-020-0010 General Standards The following general standards shall be applied, where applicable, to each application for an ocean shore permit: (1) Project Need — There shall be adequate justification for the project to occur on and alter the ocean shore area. (2) Protection of Public Rights — Public ownership of or use easement rights on the ocean shore shall be adequately protected. (3) Public Laws — The applicant shall comply with federal, state, and local laws and regulations affecting the project. (4) Alterations and Project Modifications — There are no reasonable alternatives to the proposed activity or project modifications that would better protect the public rights, reduce or eliminate the detrimental affects on the ocean shore, or avoid long-term cost to the public. (5) Public Costs — There are no reasonable special measures which might reduce or eliminate significant public costs. Prior to submission of the application, the applicant shall consider alternatives such as nonstructural solutions, provision for ultimate removal responsibility for structures when no longer needed, reclamation of excavation pits, mitigation of project damages to public interests, or a time limit on project life to allow for changes in public interest. (6) Compliance with LCDC Goals — The proposed project shall be evaluated against the applicable criteria included within Statewide Land Conservation and Development Goals #5: Natural Resources, Scenic and Historic Areas, and Open Spaces, #17: Coastal Shorelands, #18: Beaches and Dunes, and #19: Ocean Resources, and other appropriate statewide planning goals. In accordance with the Statewide Land Conservation and Development Commission Goal #18, permit applications for beachfront protective structures on the ocean shore shall be considered only where development existed on January 1, 1977. The project shall be consistent with local comprehensive plans where such plans have been approved by LCDC. When the application is for a pipeline, cable line or conduit under ORS 390.715, the project shall be consistent with Statewide Planning Goal #19, Ocean Resources, and applicable requirements of the Oregon Territorial Sea Plan. Statutory/Other Authority: ORS 184 & 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PR 12-1984, f. & ef. 12-12-84 1OTC 6-1978, f. & ef. 4-5-78 HC 1221, f. 4-21-70
736-020-0015 Scenic Standards Projects on the ocean shore shall be designed to minimize damage to the scenic attraction of the ocean shore area. The following scenic standards shall be applied, where applicable, to each application for an ocean shore permit. (1) Natural Features — The project shall retain the scenic attraction of key natural features, for example, beaches, headlands, cliffs, sea stacks, streams, tide pools, bedrock formations, fossil beds and ancient forest remains. (2) Shoreline Vegetation — The project shall retain or restore existing vegetation on the ocean shore when vital to scenic values. (3) View Obstruction — The project shall avoid or minimize obstruction of existing views of the ocean and beaches from adjacent properties. (4) Compatibility with Surroundings — The project shall blend in with the existing shoreline scenery (type of construction, color, etc.). Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PRD 7-2000, f. & cert. ef. 5-10-00 1OTC 6-1978, f. & ef. 4-5-78 HC 1221, f. 4-21-70
736-020-0020 Recreation Use Standards The following recreation use standards shall be applied, where applicable, to each application for an ocean shore permit. (1) Recreation Use — The project shall not be a detriment to public recreation use opportunities within the ocean shore area except in those cases where it is determined necessary or legally required to protect sensitive biological resources such as state or federally listed species. (2) Recreation Access — The project shall avoid blocking off or obstructing public access routes within the ocean shore area except in those cases where it is determined necessary or legally required to protect sensitive biological resources such as state or federally listed species. Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PRD 7-2000, f. & cert. ef. 5-10-00 1OTC 6-1978, f. & ef. 4-5-78 HC 1221, f. 4-21-70
736-020-0025 Safety Standards The project shall be designed to avoid or minimize safety hazards to the public and shoreline properties. The following safety standards shall be applied, where applicable, to each application for an ocean shore permit. (1) Structural Safety — The project shall not be a safety hazard to the public due to inadequate structural foundations, lack of bank stability, or the use of weak materials subject to rapid ocean damage. (2) Obstructional Hazards — The project shall minimize obstructions to pedestrians or vehicles going onto or along the ocean shore area. (3) Neighboring Properties — The project shall be designed to avoid or minimize ocean erosion or safety problems for neighboring properties. (4) Property Protection — Beachfront property protection projects shall be designed to accomplish a reasonable degree of increased safety for the on-shore property to be protected. Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PRD 7-2000, f. & cert. ef. 5-10-00 1OTC 6-1978, f. & ef. 4-5-78 HC 1221, f. 4-21-70
736-020-0030 Natural and Cultural Resource Standards (1) Projects on the ocean shore shall avoid or minimize damage to the following natural resources, habitat, or ocean shore conditions, and where applicable, shall not violate state standards: (a) Fish and wildlife resources including rare, threatened or endangered species and fish and wildlife habitats. (b) Estuarine values and navigation interests. (c) Historic, cultural and archeological sites. (d) Natural areas (vegetation or aquatic features). (e) Air and water quality of the ocean shore area. (f) Areas of geologic interest, fossil beds, ancient forest remnants. (2) When necessary to protect native plant communities or fish and wildlife habitat on the subject or adjacent properties, only native, non-invasive, plant species shall be used for revegetation. Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PRD 7-2000, f. & cert. ef. 5-10-00 1OTC 6-1978, f. & ef. 4-5-78 HC 1221, f. 4-21-70
736-020-0035 Natural Product Removal from the Ocean Shore: Exceptions, Compensation (1) In accordance with ORS 390.725, natural products of the ocean shore, such as agates, small amounts of marine algae, driftwood or souvenirs of the ocean shore, may be taken by any person, for their own, noncommercial use, from the State recreation areas as described by ORS 390.635, without a permit, except that no person shall collect any amount of natural product of the ocean shore where prohibited by state or federal regulation or right of private ownership. (2) Each natural product removal permit issued by the Department shall specify an amount and/or form of just compensation to be paid by the permittee. At the Department’s discretion, just compensation may be comprised of any combination of the following: (a) A flat fee; (b) A flat fee plus reporting requirements as specified by the Department; (c) A percentage, not to exceed three percent, of the applicant’s gross revenues resulting from the sale of the ocean shore product; (d) A fee rate per measure, such as weight or volume, not to exceed three percent of the applicant’s gross revenues resulting from the sale of the ocean shore product; (e) Administrative costs to the State of processing the application, issuing the permit, and monitoring the project for permit compliance. (3) At its discretion, the Department may schedule payment of just compensation over the life of the permit to reflect changing market values, variations in the volume of natural product removal and the availability of the natural product being harvested. Failure of the permittee to make any scheduled payment of just compensation shall be cause for the Department to revoke the permit. (4) Just compensation payments made under section (2) of this rule are subject to ORS 273.105(2). In accordance with this statute, just compensation payments in excess of the Department’s administrative costs of reviewing and processing the application, issuing and administering the permit, and monitoring the project, shall be deposited into the Common School Fund as provided by ORS 273.105(2). Statutory/Other Authority: ORS 183.545, 189, 390.605 et seq. & 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PRD 7-2000, f. & cert. ef. 5-10-00 PR 8-1992, f. & cert. ef. 11-12-92 PR 11-1984, f. & ef. 12-12-84 1OTC 1215, f. 2-10-1970
736-020-0050 Eligibility for Emergency Permit (1) In accordance with ORS 390.650(6), an emergency permit for a new improvement or alteration may be issued, unless otherwise prohibited by law, to provide immediate and temporary protection where property is in imminent peril of being destroyed or damaged by action of the Pacific Ocean or waters of a bay or river, landslide, or other natural disaster. Said permit may be granted by the Department prior to the Ocean Shore Improvement Permit process required under ORS 390.650(1), (2), (3), (4), and (5). (2) “Property” shall be defined as an upland building, road, street, highway, sewer or water line, or other infrastructure improvement. (3) “Imminent Peril” shall be defined as a situation in which property is likely to be severely damaged or destroyed by action of the Pacific Ocean or waters of a bay or river, or by landslide or other natural disaster, and where such damage would be likely to occur prior to the time required for approval of an Ocean Shore Improvement Permit. Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.124 History: PRD 7-2000, f. & cert. ef. 5-10-00 PRD 12-1998, f. & cert. ef. 12-2-98
736-020-0060 Review and Issuance of Emergency Permit (1) Upon inspection of the site by a Department employee or authorized representative of the Department, an emergency permit may be issued, written or oral, by an employee specifically designated by the Director to issue an Ocean Shore Permit. Any emergency permit granted orally shall be reduced to writing by the Department within 10 days. An emergency permit shall name the property owner of record and the applicant, if other than the property owner, and list required conditions. (2) In accordance with Statewide Planning Goal #18, Beaches and Dunes, emergency permits for beachfront protective structures may be issued only where development existed on January 1, 1977, or where an exception to this Goal 18 implementation requirement has been approved by the appropriate local jurisdiction. (3) Prior to issuance of an emergency permit, the Department shall contact the local government to describe the proposed emergency measures and obtain certification that the proposed measures are in compliance with the local comprehensive plan and zoning ordinances. When local government cannot be reached due to the time of day, day of week, or failed communications systems, the Department may issue an emergency permit without local certification of compliance with the local comprehensive plan and zoning ordinances. In such cases, the Department shall advise the permittee that the Department’s emergency permit is provisional and may be rescinded if the proposed emergency measures are determined to be not in compliance with the local comprehensive plan and zoning ordinances. The applicant shall be responsible for obtaining any required permits from the local government. The emergency permit issued by the Department shall not be considered valid until all local permits have been obtained. (4) Prior to issuance of an emergency permit, the Department shall request recommendations from the Oregon Department of Fish and Wildlife on minimizing adverse impacts to wildlife or habitat values, and the Oregon Department of Geology and Mineral Industries, for information on geologic hazards. (5) Upon issuance of an emergency permit, the Department shall provide notice to the local government, the Department of Land Conservation and Development, the Division of State Lands, Oregon Department of Fish and Wildlife, and the Oregon Department of Geology and Mineral Industries. Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PRD 7-2000, f. & cert. ef. 5-10-00 PRD 12-1998, f. & cert. ef. 12-2-98
736-020-0070 Terms and Conditions of Permit (1) Under an emergency permit authorization, material placed on the ocean shore, other than beach sand moved for watercourse alterations, shall be considered temporary and shall be removed within a time specified by the Department, except as specified in section (3) of this rule. At the time of removal, the permittee shall be responsible for restoring to as natural a condition as possible, as determined by the Department, the natural resource, scenic and recreational values of the ocean shore. (2) The Department may impose conditions on the project size, design, and materials used in order to meet the objectives of the Permit Standards of ORS 390.655 and Beach Construction/Alternation Standards of OAR 736-020-0005 through 736-020-0030. (3) The permittee shall apply for an ocean shore permit, as specified in ORS 390.650, in order to seek approval to convert the temporary project approved under an emergency permit into a permanent ocean shore alteration. If a permanent permit is not applied for and approved by the Department, then all material placed on the ocean shore shall be removed and the condition of the ocean shore restored, in compliance with the conditions of the emergency permit. (4) At the Department's discretion, the Department may require a cash bond, or other security acceptable to the Department, to ensure that the permittee complies with the terms of the permit, including removal of material. Failure of the permittee to comply with the terms and conditions of the permit shall authorize the Department, without further notice, to conduct the work necessary to complete the required terms and conditions and deduct any and all costs and expenses for the work. (5) The Department shall deduct from the cash bond or other security, all legal costs associated with the emergency permit, including, but not limited to, enforcement of permit conditions, and acquisition of funds from the cash bond or other security. The Department shall pursue all available legal or judicial alternatives to recover costs incurred by the public resulting from non-compliance with the terms and conditions of any emergency permit. Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.124 History: PRD 7-2000, f. & cert. ef. 5-10-00 PRD 12-1998, f. & cert. ef. 12-2-98
736-020-0110 Disposition of Fees and Penalties (1) The Department shall establish an account for fees and penalties collected by the Department, or awarded by the court(s), in the administration of the ocean shore statutes. The moneys in this account shall be dedicated to the ocean shore program and shall be continually appropriated to the Department to be used, in priority order, highest to lowest, for: (a) Administering the Department’s ocean shore permitting program; (b) Preserving and protecting the scenic, recreational and other natural resource values of the ocean shore, including preserving, protecting and restoring native species and habitats including rare, threatened, or endangered species and their habitats; (c) Providing public education about the ocean shore; (d) Promoting public safety on the ocean shore; (e) Providing information and assistance to oceanfront landowners; and (f) Any other purpose the Director may deem appropriate in promoting the ocean shore policy in ORS 390.610 through 390.635. (2) The fees and penalties that shall be deposited into the ocean shore account shall include: (a) Application fees collected in accordance with ORS 390.650(7); (b) That portion of just compensation fees collected in accordance with ORS 390.715(1) and 390.725(1) necessary to cover the Department’s administrative costs, including processing the application, issuing and administering the permit and monitoring the project; (c) Civil penalties collected in accordance with Oregon Laws 1999, Chapter 373, Sections (9), (10), and (11); (d) Court awarded settlements in civil abatement proceedings in accordance with Oregon Laws 1999, Chapter 373, Sections (13) and (16); and (e) Court awarded settlements to any plaintiff in civil abatement proceedings in accordance with Oregon Laws 1999, Chapter 373, Section (15). Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PRD 7-2000, f. & cert. ef. 5-10-00
736-020-0120 Administrative Relief, Appeals, Judicial Review (1) Where an application for an improvement permit required under ORS 390.640, or a permit for a pipeline, cable or conduit crossing of the ocean shore required under ORS 390.715, or a permit for removal of products from the ocean shore required under ORS 390.725, is denied, the applicant may request a hearing from the Director. Where a permit is issued under ORS 390.650, any person aggrieved by the issuance of the permit or conditions imposed on the permit, may request a hearing from the Director. The application denial or permit approval shall be considered the Director’s original order. (2) Requests for hearing described in section (1) of this rule shall be in writing and shall: (a) Include a clear statement of the reason(s) for the request; (b) If the request is being made by a person other than the applicant, include a clear statement of the person’s legally protected interest and how that interest is adversely affected by the issuance of the permit; and (c) Be received by the Director within 30 days of service of the order denying or granting the permit. The date of service shall be the date of delivery of the order in person, or the date of mailing. (3) A hearing held in response to a request under this rule shall be conducted as a contested case in accordance with the provisions of ORS 183.415 to 183.430, 183.440 to 183.460, and 183.470. (4) Within 30 days of the receipt of a request for hearing, the Director shall schedule a hearing to be held at such time as is agreeable to the person making the request and such other persons as may be parties to the hearing. The applicant shall be a party to any contested case hearing requested by a person other than the applicant. The Director may enter a written agreement with the applicant and any parties to delay the hearing in order to resolve any matters in dispute through mediation or some other form of alternative dispute resolution. (5) The Director shall enter a final order within 45 days after the contested case hearing. The final order shall affirm, modify or rescind the Director’s original order denying the application or approving the permit. (6) Jurisdiction for judicial review of contested cases is conferred upon the Court of Appeals. A party may initiate an appeal of a final order in a contested case proceeding by filing a petition in the Court of Appeals within 60 days following the date of the order as provided by ORS 183.482. (7) A decision applying the standards of OAR 736-020-0010 is not a “land use decision” as defined by ORS 197.015(10) that is subject to the jurisdiction of the Land Use Board of Appeals pursuant to ORS 197.825. Statutory/Other Authority: ORS 390.124 Statutes/Other Implemented: ORS 390.605 - 390.770 & 390.990 - 390.995 History: PRD 7-2000, f. & cert. ef. 5-10-00
736-021-0010 Scope of Rules This division governs the use of the ocean shore state recreation area, which consists of the land lying between extreme low tide of the Pacific Ocean and the statutory vegetation line as described by ORS 390.770 or the line of established upland shore vegetation, whichever is farther inland. This division does not govern activities or uses in the sub-tidal zone, which extends below extreme low tide, or in an estuary as defined in ORS 196.800. Statutory/Other Authority: ORS 390.660 Statutes/Other Implemented: ORS 390.660 History: PRD 1-2013, f. 1-15-13, cert. ef. 2-1-13 PR 9-1994, f. 11-29-94, cert. ef. 12-1-94
736-021-0020 Statutory Authority This division is adopted pursuant to: (1) ORS 390.050, which authorizes the director and the director's designees to enforce park and ocean shore state recreation area rules by citation authority; and (2) ORS 390.635 and 390.660, which grant the Oregon State Parks and Recreation Commission the following: (a) Complete jurisdiction and authority to administer as state recreation areas, all ocean shore areas owned by the state and all other public easements or other rights of access that the state holds on the ocean shore; (b) Authority to protect and maintain such areas in a manner that will contribute to the general welfare of the public and the natural and cultural resources thereon; and (c) Authority to make regulations and provisions as it deems necessary for the use and administration of such areas. Statutory/Other Authority: ORS 390.660 Statutes/Other Implemented: ORS 390.124, 390.635 & 390.660 History: PRD 1-2013, f. 1-15-13, cert. ef. 2-1-13 PR 9-1994, f. 11-29-94, cert. ef. 12-1-94