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DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT

 

DIVISION 45

CITIZEN-INITIATED ENFORCEMENT ORDERS

660-045-0000

Purpose

The purpose of this division is to establish uniform procedures for citizen-initiated enforcement orders, as provided in ORS 197.319 to 197.335 and 197.646.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

660-045-0010

Applicability

OAR 660-045-0000, -0030 to -0090, and -0160 apply only to enforcement orders requested by a citizen petition in accordance with ORS 197.319; they do not apply to enforcement orders initiated by the Land Conservation and Development Commission in accordance with ORS 197.324(1). OAR 660-045-0020 (definitions), 660-045-0100 to -0150 (on contested-case hearings), and 660-045-0170 to -0180 (on terminating enforcement orders) apply to all types of enforcement orders.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0020

Definitions

(1) Affected local government or district means a local government, as defined in ORS 197.015(13), or a special district, as defined in ORS 197.015(19), against which a requester seeks an enforcement order.

(2) Commission means the Land Conservation and Development Commission.

(3) Corrective action means an action sought by a requester or required of an affected local government or district by an enforcement order under ORS 197.335(1)(c). The term includes revisions to an affected local government or district's comprehensive plan, land use regulations, special district cooperative agreement, urban service agreement, or decision-making process. A corrective action is the remedy for the noncompliance specified by an enforcement order.

(4) Department means the Department of Land Conservation and Development.

(5) Enforcement order means a final order adopted by the commission in accordance with the provisions of ORS 197.319 to 197.335 and 197.646.

(6) Interim measure means a temporary measure required of an affected local government or district by an enforcement order in accordance with ORS 197.335(3) to 197.335(5). An interim measure is one in effect only while an affected local government or district is bringing itself into compliance with an enforcement order. Interim measures include (but are not limited to) limitations on land use permits, withholding of state-shared revenues, and review of local land use decisions by a hearings officer or by the department.

(7) Mail means to convey a document by any of the following means: first-class mail via the United States Postal Service, if verified with a certificate of mailing; certified or registered mail via the United States Postal Service; delivery by commercial carrier, if the carrier guarantees delivery within three days and issues a receipt of transmittal. As used in this division, the word mail does not include the transmitting of documents by facsimile (fax), electronic mail (e-mail), or telephone.

(8) Mediation means a process in which a collaborative dispute resolution provider, as defined in OAR 137-001-0005(4), assists the requester and the affected local government or district in reaching a mutually acceptable resolution of issues raised in a petition for enforcement. Mediation is a voluntary process available to parties at any stage of an enforcement proceeding.

(9) Noncompliance means a state of not being in compliance with a currently applicable comprehensive plan, land use regulation, special district cooperative agreement, urban growth management agreement, goal, rule, or other regulation or agreement, as described in ORS 197.320(1) to 197.320(10) or in ORS 197.646. The term includes a failure to comply with applicable case law in making a land use decision. The term includes a pattern or practice of decision making that violates an acknowledged comprehensive plan or land use regulation. Noncompliance is the problem that an enforcement order seeks to eliminate through corrective action.

(10) Pattern of decision making means a mode, method, or instance of decision making representative of a group of decisions with these characteristics:

(a) The decisions involve the same or related provisions of an acknowledged comprehensive plan, land use regulation, or special district cooperative agreement;

(b) The decisions involve the same or similar geographic areas, plan designations, zones, or types of land use; and

(c) The decisions occurred within the three years preceding the date on which the requester sent the affected local government or district the request described in OAR 660-045-0040, or the decisions are likely to occur after that date.

(11) Practice of decision making means a series or succession of decisions with these characteristics:

(a) The decisions involved the same or similar provisions of an acknowledged comprehensive plan, land use regulation, or special district cooperative agreement;

(b) The decisions involved the same or similar geographic areas, plan designations, zones, or types of land use; and

(c) The decisions occurred within the three years preceding the date on which the requester sent the affected local government or district the request described in OAR 660-045-0040.

(12) Requester means a person as defined in ORS 197.015(18) who seeks an enforcement order under ORS 197.319 to 197.335.

(13) Year means any period of 365 consecutive days.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0030

Petitioning for Enforcement

(1) A person may petition the commission for an enforcement order against a local government or special district in accordance with ORS 197.319 to 197.335 and 197.646.

(2) A person petitioning for enforcement shall do so in accordance with the requirements of ORS 197.319 to 197.335 and this division.

(3) The commission may dismiss any petition for enforcement not conducted in accordance with ORS 197.319 to 197.335 and this division.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0040

The Citizen's Request to the Affected Local Government or District

(1) When a requester seeks to initiate enforcement proceedings against an affected local government or district, the requester first must notify that government or district by mailing a copy of the request to it. If the request for enforcement is directed toward a local government, the requester must notify both the governing body and the legal counsel of that local government.

(2) The citizen's request shall be in the form of a letter containing the following information:

(a) The name, address, and telephone number of the requester;

(b) The name, address, and telephone number of the attorney, if any, who will represent the requester;

(c) The name and address of the affected local government or district;

(d) A clear statement of the requester's intent to "petition the Land Conservation and Development Commission for an enforcement order pursuant to ORS 197.319 to 197.335";

(e) The subsection of the statute on which the petition will be based (ORS 197.320(1) to ORS 197.320(10) or ORS 197.646(3)); and

(f) A statement of facts that establish a basis for seeking enforcement and for invoking the subsection of ORS 197.320 or ORS 197.646 cited by the requester.

(3) The statement of facts required in subsection (2)(f) shall describe five matters:

(a) The specific provisions of the comprehensive plan, land use regulation, special district cooperative agreement, urban growth management agreement, goal, rule, or other regulation or agreement, as described in ORS 197.320(1) to 197.320(10) or ORS 197.646, with which the affected local government or district is alleged not to comply;

(b) Any case law or appellate rulings with which the affected local government or district is alleged not to comply;

(c) The nature of the noncompliance alleged in subsection (3)(a);

(d) The lands affected by the noncompliance alleged in subsection (3)(a); and

(e) The corrective action the requester seeks from the affected local government or district.

(4) If the requester alleges that a pattern of noncompliant decisions by the affected local government or district is the reason for seeking enforcement, the requester's statement of facts also shall describe the following:

(a) The mode, method, or instance of decision making that constitutes the pattern;

(b) An estimate of the total number of decisions that make up the pattern; and

(c) The period within which the decisions constituting the pattern were made.

(5) If the requester alleges that a practice of noncompliant decisions by the affected local government or district is the reason for seeking enforcement, the requester's statement of facts also shall contain the following:

(a) A detailed description of two or more decisions that are part of the practice;

(b) Copies of the findings (if any) adopted by the affected local government or district in support of the decisions specified in subsection (a);

(c) An estimate of the total number of decisions that make up the practice; and

(d) A description of the period within which the decisions constituting the practice were made.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0050

The Local Government or Special District's Response to a

Citizen's Request

(1) An affected local government or district that receives a citizen's request for enforcement shall mail the requester a response within 60 days of the date on which the request was mailed.

(2) The response shall contain either of the following:

(a) A statement that the affected local government or district will take corrective action in response to the request and a description of what that action will be; or

(b) A statement that the affected local government or district will not take corrective action and an explanation of its reasons for taking no action.

(3) If the affected local government or district will take corrective action, its statement of the intended action must specify the following:

(a) How the provisions of any relevant plan, regulation, agreement, or process will be amended;

(b) How the provisions of any relevant plan, regulation, agreement, or process will be applied or interpreted differently;

(c) Precise citations to the provisions of any plan, regulation, agreement, or process to be amended or applied differently; and

(d) The schedule for the action to be taken.

(4) If the affected local government or district fails to mail a response within 60 days, that failure shall be construed as a refusal to take corrective action. The requester then may petition the commission for enforcement. The requester shall mail such a petition within 240 days after the original request was mailed to the affected local government or district.

(5) If the affected local government or district mails a response to the requester within 60 days, the requester shall evaluate it.

(a) If the requester finds the corrective action proposed by the local government or district to be adequate, the requester shall notify the affected local government or district and the department and take no further action toward enforcement.

(b) If the requester finds the corrective action proposed by the local government or district to be inadequate, the requester may:

(A) Take no further action toward enforcement;

(B) Enter into mediation with the affected local government or district; or

(C) Petition the commission for enforcement.

(6) If the requester receives a response, finds it to be inadequate, and decides to petition for enforcement, the requester must mail the petition to the department within 180 days of the date when the affected local government or district mailed its response to the requester.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0060

Petitioning the Commission to Initiate Enforcement Proceedings

(1) A petition for enforcement shall be in the form of a letter to the commission and shall contain these three items:

(a) A request for the commission to adopt an enforcement order to secure the corrective action sought in the citizen's initial request to the affected local government or district;

(b) An explanation of why the affected local government or district's response to the request is not adequate, or a statement that the affected local government or district failed to respond; and

(c) A statement of consequences likely to result from the affected local government or district's refusal to take adequate corrective action.

(2) The petition shall be accompanied by copies of the following documents:

(a) The request mailed to the affected local government or district;

(b) A receipt or certificate showing how and when that request was mailed to the affected local government or district;

(c) The affected local government or district's response (if any) to the request;

(d) any maps or photographs that illustrate the type, extent, or location of the alleged noncompliance;

(e) Documentation of the noncompliance alleged in the request, including but not limited to the following:

(A) Records of noncompliant actions taken by the affected local government or district, such as approvals, permits, rezonings, plan amendments, and amendments of land use regulations;

(B) Requirements from the comprehensive plan, land use regulation, special district cooperative agreement, urban growth management agreement, goal, rule, or other regulation or agreement, as described in ORS 197.320(1) to 197.320(10) and ORS 197.646, with which the affected local government or district has not complied.

(3) For each record and requirement cited in accordance with paragraphs (2)(e)(A) and (2)(e)(B), the documentation must include copies of the following:

(a) The document's cover or title page (if any);

(b) The document's table of contents (if any);

(c) Precise citations to the relevant provisions; and

(d) The relevant provisions.

(4) The requester must mail an identical copy of the petition, including all documentation, to the affected local government or district. The requester must mail that copy on the same day it mails its petition to the commission.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

660-045-0070

The Department's Receipt and Initial Review of a Petition

(1) The department shall record the petition's arrival and review it for completeness and compliance with ORS 197.319 and OAR 660-045-0040 to -0060.

(2) If the petition is incomplete, the department may, at its discretion, request additional information from the requester, add such information to the petition, and then accept the petition.

(3) If the petition (including any information added under the provisions of Section 2) fails to meet the requirements of ORS 197.319 to ORS 197.324 and this division in a way that substantially prejudices the affected local government or district or is materially deficient, the department shall reject the petition.

(4) If the department rejects the petition, the commission shall not consider the petition.

(5) If the department rejects the petition, the department shall notify the requester and the affected local government or district of the rejection. The notice of rejection must describe the reasons for the petition's being rejected.

(6) If the petition fully meets the requirements of ORS 197.319 to ORS 197.324 and this division, or if it does not fail to meet them in a way that substantially prejudices the affected local government or district or is materially deficient, the department shall accept the petition.

(7) If the department accepts the petition, the department shall notify the requester and the affected local government or district of the acceptance.

Stat. Auth.: ORS 183 & 197
Stats. Implemented: ORS 197.319 - 197.335 & 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

660-045-0080

The Department's Actions After Accepting a Petition

(1) If the department accepts a petition, the department shall evaluate the alleged noncompliance and prepare recommendations to the commission.

(2) In evaluating the alleged noncompliance, the department shall consider these three matters and any others it deems relevant:

(a) The noncompliance specified in the citizen's request to the affected local government or district;

(b) The affected local government or district's response to the request;

(c) Facts known to the department or ascertained by its investigation.

(3) The department shall prepare recommendations to the commission that include findings on the following three matters and any others the department deems relevant:

(a) Whether there is good cause to proceed to a contested-case hearing of the petition;

(b) Whether the commission or a hearings officer should conduct the contested-case hearing, if one is to be held;

(c) A date for the contested-case hearing, if one is to be held.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

660-045-0090

The Commission's Determination of Good Cause to Proceed

(1) The commission shall conduct a public hearing to determine whether there is good cause to proceed to a contested-case hearing.

(2) Only the department and parties to the proceeding may present testimony during the good-cause hearing described in Section 1.

(3) The commission may set limits on the time allowed for testimony at the good-cause hearing.

(4) A requester who alleges a pattern or practice of noncompliant decision making may present as evidence of good cause to proceed recent examples of noncompliant decisions made after the requester notified the affected local government or district of the requester's intent to petition for enforcement.

(5) In deciding whether there is good cause to proceed, the commission shall consider the following:

(a) The department's recommendation;

(b) The requester's petition;

(c) The citizen's request notice to the affected local government or district;

(d) The affected local government or district's response to the citizen's request;

(e) Related facts known to or ascertained by the commission; and

(f) Any testimony from parties to the enforcement proceeding.

(6) The commission shall find that there is good cause to proceed to a contested-case hearing if the information described in Section 5 contains substantial evidence of noncompliance.

(7) If the commission finds there is not good cause to proceed, it shall issue an order dismissing the petition and stating its reasons for doing so. A commission order dismissing a petition on grounds that there is not good cause to proceed shall be a final order. If the commission finds there is not good cause to proceed, no contested-case hearing of the petition shall be conducted.

(8) If the commission finds there is good cause to proceed, it shall issue a written decision describing the reasons for its decision.

(a) The commission may find good cause to proceed on some assertions of noncompliance in a petition, but not on others.

(b) The commission may, under its own motion pursuant to ORS 197.324, proceed on related assertions of noncompliance not contained in the petition.

(9) If the commission finds there is good cause to proceed, it shall initiate proceedings toward a contested-case hearing, as described in OAR 660-045-0100 to -0120.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

660-045-0100

Arranging the Contested-Case Hearing

(1) A contested-case hearing on a petition for enforcement shall be conducted before a hearings officer appointed by the commission, unless the commission decides to conduct the hearing itself.

(2) When a hearings officer conducts a hearing, the commission shall delegate all its authority regarding the contested case to the hearings officer, except for its authority to act on the hearing officer's proposed order.

(3) If the commission decides to have a hearings officer conduct the hearing, the hearings officer shall set a date for that hearing. The act of setting such a date must be done within 45 days of the date when the petition was received by the department.

(4) If the commission decides that it will conduct the hearing itself, the department shall set a date for that hearing. The act of setting such a date must be done within 45 days of the date when the petition was received by the department.

(5) The commission may delegate to the department the responsibility for appointing a hearings officer.

(6) The department shall appoint a hearings officer to preside over pre-hearing matters, including, but not limited to, notice, party and limited party status, discovery, and pre-hearing conferences.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319, ORS 197.320, ORS 197.324 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0110

Notice of the Contested-Case Hearing

(1) The department or hearings officer must mail notice of the contested-case hearing to the requester, affected local government or district, mediator (if any), and any other person who has requested notice.

(2) The notice required in Section 1 shall contain the following:

(a) The date, time, and place of the hearing;

(b) A statement of the authority under which the hearing is to be held;

(c) A reference to the specific provisions of the statutes and rules involved;

(d) A short, plain statement of the matters asserted or charged;

(e) A statement that, pursuant to ORS 183.457, parties and limited parties to the proceedings may be represented by an attorney or an authorized representative, subject to the other requirements of ORS 183.457 and OAR 137-003-0008;

(f) A statement that the record of the proceeding to date, including information in the agency file or files on the subject of the contested case, will automatically become part of the contested-case record upon default for the purpose of proving a prima facie case (per OAR 137-003-0001(1)(a));

(g) A statement containing the following information about mediation:

(A) That mediation is available as an alternative to a contested-case hearing, if requested by both the requester and the affected local government or district;

(B) That DLCD will provide mediation services;

(C) That choosing to enter into mediation will not affect one's right to a contested-case hearing if the matter is not resolved through mediation;

(D) The date by which both parties must request mediation.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0120

Participation of Parties or Limited Parties in the Contested-Case Hearing

(1) Persons interested in the enforcement proceeding may request status as a party or limited party in accordance with OAR 137-003-0005 ("Participation as a Party or Limited Party"). Any such request must be filed with the department at least 21 days before the date of the contested case hearing. The department shall respond to such requests as is specified in OAR 137-003-0005.

(2) In accordance with OAR 137-003-0007 ("Agency Participation as Interested Agency or Party"), the department may designate another agency as an interested agency or party.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0130

The Contested-Case Hearing

(1) The contested-case hearing shall be conducted in accordance with ORS 183.413 to 183.470 ("Contested Cases"). The hearing also shall be conducted in accordance with the provisions of OAR Chapter 137, Division 3, Contested Case Proceedings. However, some provisions of OAR Chapter 137, Division 3, have been modified by commission rules pursuant to OAR Chapter 660, Division 3, or by this division. In such cases, the commission rules and this division shall apply.

(2) Before the hearing begins, the commission or hearings officer shall inform all parties of certain rights, issues, and procedures as required by subsections (2) to (4) of ORS 183.413 and ORS 183.415(7).

(3) The commission or hearings officer may conduct a prehearing conference, in conformance with OAR 137-003-0035 ("Prehearing Conferences").

(4) As specified in OAR 660-001-0005(2), parties to the contested-case hearing may be represented in three ways:

(a) A party may represent itself.

(b) A party may be represented by an attorney.

(c) Certain parties may be represented by an authorized representative who is not an attorney.

(5) Pursuant to ORS 183.440, parties to the contested case may subpoena witnesses. A party that subpoenas a witness shall pay the fees and mileage of the witness in accordance with ORS 183.440(1) and ORS 44.415(2). Payment shall be made directly to the witness.

(6) All discovery through means other than subpoena shall be done in accordance with OAR 137-003-0025 ("Discovery in Contested Cases").

(7) At the hearing, the requester shall recommend whether the enforcement order should include interim measures as specified in ORS 197.335(3)(a) (on interim requirements pending compliance with an order) and ORS 197.335(4) (on withholding grants or state-shared revenues). If the requester recommends that such measures be adopted, the requester must specify precisely what measures it recommends.

(8) At the hearing, the affected local government or district shall respond to the requester's recommendation on interim measures, and shall specify what measures, if any, the affected local government or district recommends.

(9) After the hearing and the record have been closed, the commission or hearings officer shall determine whether there is good cause to believe that grounds for enforcement pursuant to ORS 197.320(1) to ORS 197.320(10) or ORS 197.646(3) exist.

(10) If it is determined that there is good cause to believe that grounds for enforcement exist, the commission must specify, or the hearings officer must recommend, appropriate corrective action.

(11) If it is determined that there is good cause to believe that grounds for enforcement exist, the commission may specify, or the hearings officer may recommend, one or more interim measures, in accordance with the provisions of ORS 197.335(3) and (4).

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0140

Procedures After a Hearing Conducted by a Hearings Officer

(1) If a hearings officer conducts the contested-case hearing, the hearings officer shall complete the following actions within 30 days of the date when the record closed:

(a) Write a proposed order pursuant to ORS 197.328(3) and complying with ORS 197.335;

(b) Send the proposed order to the commission.

(2) After the commission receives the proposed order from the hearings officer, the commission must do the following:

(a) Establish a date on which the commission will consider the proposed order;

(b) Mail the proposed order to all parties; and

(c) Mail to all parties the following information:

(A) The date on which the commission will consider the proposed order;

(B) A statement that the commission will limit its review as specified in Section (4) of this rule;

(C) A statement that exceptions to the proposed order may be filed by parties to the case; and

(D) A statement that exceptions to the proposed order must be received by the commission no later than 15 days after the order was mailed to the parties.

(3) At least 16 days after the proposed order is mailed to the parties, the commission shall consider the proposed order and adopt a final order. The commission may adopt the proposed order as the final order, modify parts of the proposed order, or not use any part of the proposed order.

(4) In reviewing the proposed order and adopting the final order, the commission shall not consider new evidence. The commission shall consider only the following:

(a) The record of proceedings before the hearings officer;

(b) Timely exceptions to the proposed order;

(c) Arguments concerning the proposed order and exceptions;

(d) Recommendations and information from the department.

(5) The final order shall include findings of fact and conclusions of law as specified in ORS 197.335. The final order shall meet the requirements of OAR 137-003-0070, "Final Orders in Contested Cases."

(6) The commission shall adopt its final order within 120 days of the date on which the requester filed its petition for enforcement with the commission.

(7) Within five days of the commission's adoption of the final order, the department shall mail to all parties a copy of that order and its findings and conclusions.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0150

Procedures After a Hearing Conducted by the Commission

(1) If the commission conducts the contested-case hearing, the commission shall adopt a final order within 30 days of the date when the record closed. The commission may adopt a final order on the same day that it conducts the contested-case hearing, or it may adopt a final order at a subsequent meeting within 30 days of the hearing.

(2) The final order shall include findings of fact and conclusions of law as specified in ORS 197.335. The final order shall meet the requirements of OAR 137-003-0070, "Final Orders in Contested Cases."

(3) The commission shall adopt its final order within 120 days of the date on which the requester filed its petition for enforcement with the commission.

(4) Within five days of the commission's adoption of the final order, the department shall mail to all parties a copy of that order and its findings and conclusions.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

660-045-0160

Mediation and Settlement

(1) During the 60-day period specified in OAR 660-045-0050(1), the requester or the affected local government or district may request mediation services from the department. The department may provide such services. If the requester and the affected local government or district jointly request such services, the department must provide them, pursuant to ORS 197.319(2)(b).

(2) A proceeding under this division may be delayed at any time to allow for mediation if both the requester and the affected local government or district agree to enter into such mediation. If either party withdraws from such mediation, the proceeding toward enforcement shall be resumed.

(3) A proceeding under this division may be stopped at any time and disposed of through stipulation, agreed settlement, consent order, or default. A stipulation, agreed settlement, or consent order must be in writing and must be signed by both the requester and the affected local government or district.

(4) A deadline set forth in this division may be altered or waived under these two conditions:

(a) The requester and the affected local government or district both agree to such a change before the deadline is reached; and

(b) The commission or hearings officer approves of such a change before the deadline is reached.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 183.415, ORS 197.319, ORS 197.320 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0170

Terminating an Enforcement Order

(1) The commission shall terminate an enforcement order if the commission finds that any one of these conditions exists:

(a) The affected local government or district has complied with the requirements of the order;

(b) A substantial change in circumstances has eliminated the need for corrective action of the type required by the order; or

(c) A change in the applicable laws has rendered the enforcement order moot or has eliminated the need for corrective action of the type required by the order.

(2) The commission may initiate proceedings to terminate an enforcement order without having received a request to terminate the order. If the commission decides to initiate such proceedings, it shall notify all parties and provide for their participation under the provisions of OAR 660-045-0110 to -0130.

(3) An affected local government or district, a requester, or the department may request that an enforcement order be terminated. If the commission receives such a request, it shall notify all parties and provide for their participation under the provisions of OAR 660-045-0110 to -0130.

(4) The commission may write an enforcement order so that it terminates automatically when a specified date is reached or when an action specified in the order has been completed by the affected local government or district. If an order specifies such a termination date or action, the order shall terminate without notice to the parties and without further action by the department or commission when the termination date passes or when the termination action is completed. If an enforcement order contains no provision for automatic termination, then it shall remain in effect until the commission terminates the order in accordance with this rule.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

 

660-045-0180

Requests for Terminating an Enforcement Order

(1) A party requesting termination of an enforcement order shall mail its request to the commission. On the same day that it mails its request to the commission, the party shall mail copies of the request to all other persons who were parties to the enforcement proceeding.

(2) A request to terminate an enforcement order shall be in the form of a letter containing the following items:

(a) A statement asking that the commission terminate the enforcement order;

(b) Citation to the subsection of OAR 660-045-0170(1) on which the request for termination is based;

(c) A description of how the affected local government or district's corrective action, a substantial change of circumstances, or a change in the applicable laws justifies termination of the order;

(d) Documentation of the corrective action, substantial change of circumstances, or change in the applicable laws that justifies termination of the order.

(3) Within 30 days of the date on which the request for termination was mailed, the department shall review the request to determine whether it is complete and complies with this rule. On or before the thirtieth day, the department shall convey the results of its review to the commission and to all parties to the order.

(a) If the department finds that the request for termination is incomplete or fails to comply with this rule, the commission shall not consider the request.

(b) If the department finds that the request for termination is complete and that it does comply with this rule, the department shall evaluate the request and recommend to the commission whether the enforcement order should be terminated. The department must mail its recommendation to the commission and to all parties within 90 days of the date the request for termination was mailed to the commission.

(4) Any party to an enforcement order may comment on a request for termination of that order. Such a comment shall be mailed to the commission within 30 days of the date on which the request for termination was mailed. On the same day that it mails its comment to the commission, the responding party shall mail a copy of the comment to all other parties to the order.

(5) Only those persons who were parties to an enforcement order may participate in proceedings to terminate that order.

(6) A party's comment on a request for termination shall be in the form of a letter to the commission containing the following items:

(a) A statement indicating whether the party supports or opposes termination of the enforcement order;

(b) A description of how the affected local government or district's corrective action, a substantial change of circumstances, or change in the applicable laws justifies or fails to justify termination of the enforcement order;

(c) Documentation of the corrective actions, substantial change of circumstances, or change in the applicable laws referred to in the description required by subsection 6(b).

(7) Within 60 days of the date when the department mails its recommendation to the commission, the commission shall decide whether to terminate the enforcement order. The commission shall issue a written decision stating reasons for its decision.

(8) Within five days of the commission's decision, the department shall mail copies of that decision to all parties to the enforcement order.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 197.319 - ORS 197.335 & ORS 197.646
Hist.: LCDD 5-1998, f. & cert. ef. 9-23-98

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