Current through Register Vol. 63, No. 9, September 1, 2024
(1) The Department is authorized to seize a
structure on, under or over state-owned submerged or submersible lands, if;
(a) The Department determines, after
providing notice and opportunity for a hearing, that the structure is an
abandoned structure or a derelict structure; and
(b) The owner of the structure has failed to
correct the problems identified in the notice within 20 days or a longer
reasonable time as specified in the notice or within any additional time that
may be granted by the department.
(2)
(a) The
notice required under subsection (1) of this section must be delivered by
certified mail, return receipt requested, to any person with an interest in the
structure or the land upon which the structure is located, as determined by the
Department after diligent investigation. "Diligent investigation" shall include
the following:
(A) A search of the county
real property records to identify the record owner of the submerged or
submersible lands where the structure is located, and the record owner of the
adjacent upland.
(B) Additional
investigation warranted by the circumstances.
(b) The notice required under subsection (1)
of this section must:
(A) Be delivered to the
record owner of the submerged or submersible lands where the structure is
located, if the record owner is not the State of Oregon.
(B) Be delivered to the record owner of the
adjacent upland.
(C) Identify,
with specificity, the Department's proprietary interest in and jurisdiction
over the state-owned submerged or submersible lands where the structure is
located. If the record owner of the submerged or submersible lands is not the
State of Oregon, identify the Department's basis for asserting State ownership
of the submerged or submersible lands, and state that the recipient has the
right to contest the State's claim of ownership.
(3) The Department shall contact
the property owner(s) who own riparian land that is adjacent to where the
abandoned or derelict structure is located.
(4) Any person with an interest in the
structure must, within 20 days of service of the notice, either;
(a) Provide written notice to the Department
of their intent to authorize or remove the structure, or,
(b) Request a hearing. The notice must be on
a form provided by the Department.
(5) If a person with an interest in the
structure wants to obtain an authorization from the Department, the owner of
the structure must submit a complete application within 30-days of service of
the notice.
(a) Submission of an application
under this section does not ensure that an authorization would be issued.
(b) If an application is
submitted, the Department may not seize the structure while the application is
under review.
(6) If a
person with an interest wishes to remove the structure, that person must do so
within 90 days of notice, or as otherwise agreed to by the Department.
(7) If a person with an interest
in the structure wants to challenge the actions proposed in the notice, the
person may request a hearing.
(a) The hearing
request must be received by the Department within 20 days of service of the
notice.
(b) The request must
indicate if the person contends that the structure is not abandoned or
derelict, or indicate such other specific grounds on which seizure is
challenged
(c) Upon receipt of a
request for a hearing, the Department shall suspend further action to seize the
structure until the Director issues the Department's Final Order.
(8) Upon receipt of a request for
a hearing, the Department shall process the hearing request as follows:
(a) The Department shall refer the matter to
the Office of Administrative Hearings for a contested case hearing.
(b) The Administrative Law Judge shall issue
a proposed order, making a recommendation for the Department's Final Order.
(9) After the hearing:
(a) The Director shall issue a Final Order,
which is an order in a contested case and is subject to review under ORS
183.482.
(b) If the Department determines after a
hearing that seizure of the structure is not warranted under the law, the
Department shall immediately release custody of the structure to the owner who
requested the hearing and may not charge the owner any costs incurred by the
Department in removal, salvage, storage or disposal of the structure.
(c) If the Department determines
after a hearing that seizure of the structure is warranted, the Department may
seize the structure and remove, salvage or dispose of it, as the Department
deems appropriate.
(d) The
Department shall mail a written statement of the Department's Final Order to
all persons who requested a hearing under this section.
(10) If the owner fails to either;
(a) submit an application for an
authorization,
(b) remove the
structureor
(c) request a hearing
within the time allowed in the notice, the Department's Notice shall become a
Final Order by Default and the Department may immediately seize the abandoned
or derelict structure. The Department may remove, salvage, store or dispose of
any structure seized under this section.
(11) Nothing in these rules affects the
ability of the Department to:
(a) Investigate
and prosecute trespasses on and damage to state lands under ORS
273.185; or
(b) Immediately seize without notice a
structure that presents a hazard to navigation or an imminent threat to public
health or safety.
(12)
If the Department seizes a structure without notice under this subsection and
the Department decides to salvage or dispose of the structure, the Department
shall provide notice as provided for in OAR 141-082-0310(2).
(13) The owner of an abandoned or derelict
structure is liable to the Department for all costs arising out of removal,
salvage, storage and disposal of a structure seized under this rule. However,
an owner of a structure whose only interest in the structure is a security
interest is not liable for costs arising out of the removal, salvage, storage
or disposal of a structure under these rules. Any order imposing liability for
the costs is an order other than a contested case and is subject to review
under ORS 183.484.
(14) If the Department sells a structure
seized under this rule, the liability imposed upon the owner shall be reduced
by the net proceeds of the sale.
(15) For removal or seizure of abandoned and
derelict vessels, the Department shall follow the process outlined in ORS
830.908 through
830.944.
Stat. Auth.: ORS 183, 273, 274
Stats. Implemented: ORS
274
