310 CMR 19.080 - Variances
(1)
General. The
Department recognizes that the literal application of 310 CMR 19.000 to all
persons and activities may impose significant hardships in individual
situations, frustrate the underlying legislative and regulatory purposes, or
adversely affect the public interest. Therefore, in the exercise of the
Department's discretion and upon a proper and timely demonstration, a variance
from the application of specific provisions of 310 CMR 19.000, other than those
that embody statutory requirements, may be available in an individual case to a
person whose activities are governed by them.
(2)
Required
Demonstration. A variance request shall include, at a minimum, the
following information demonstrating, to the Department's satisfaction, that:
(a) compliance with the provision would, on
the basis of conditions unique to the applicant's particular situation, impose
unreasonable economic, technological or safety burdens on the applicant or the
public;
(b) substitute measures
will provide the same or greater degree of protection to public health, safety
and the environment as the application of the regulation(s) from which a
variance is requested; and
(c) the
desired relief may be granted without substantial detriment to the public
interest and without nullifying or substantially derogating from the intent of
310 CMR 19.000.
(3)
Reasonable or Necessary. Where circumstances are
appropriate, the Department may request the applicant to establish, in addition
to the criteria listed in 310 CMR 19.080(2), either or both of the following:
(a) that no reasonable conditions or
alternatives exist that would allow the project to proceed without the
requested variance; and/or
(b) the
variance is necessary to accommodate an overriding community, regional, state,
or national public interest.
(4)
Request for
Variance. A request for a variance may be made only by or on
behalf of a person whose activities are governed by 310 CMR 19.000 and who
seeks relief from their application prior to taking any action subject to and
in conflict with them and does so in a timely manner. The request shall be made
in writing and must contain, at a minimum, the information necessary to
establish the showing required by 310 CMR 19.080(2) and, where required by 310
CMR 19.080(3), in the form prescribed in 310 CMR 19.080(4)(a) through (d):
(a) specific reference, by citation to Code
of Massachusetts Regulations, to each regulatory provision from which relief is
sought;
(b) an analysis and
evaluation, prepared by a qualified professional, of all known technically
accepted alternative methods of pursuing the activity in compliance with 310
CMR 19.000 including a detailed explanation as to each such alternative of the
factual circumstances that render it unreasonable within the meaning of 310 CMR
19.080(1);
(c) a detailed
description, prepared by a qualified professional, of the substitute measures
intended to provide the same or greater degree of protection to the public
health, safety and the environment as the application of the regulation(s) from
which a variance is requested would provide, accompanied by an opinion,
including the basis on which that opinion was formed, that the substitute
measures will in fact perform their intended function; and
(d) evidence that an overriding public
interest is associated with the project which justifies a variance from the
regulation(s) if required by the Department pursuant to 310 CMR
19.080(3)(b).
(5)
Filings. A person requesting a variance from 310 CMR
19.000 must file a request with the Regional Director of the appropriate
regional office and contemporaneously serve copies of it upon the board of
health and all abutters of the property upon which the activity is or may be
located. Filing and service may be made by hand or by using a suitable form of
mail addressed to the person to be served and requiring the return of a signed
receipt.
(6)
Initial
Action. The Regional Director, after considering a request for a
variance, requesting and receiving such additional information as may be
required, and holding a public hearing should public interest in the matter or
the technical complexity or uniqueness of the issues warrant doing so, shall
grant or refuse the request in whole or in part. Should the Regional Director
determine to grant the request in whole or in part, the determination will
include a specific finding that the request makes the showing required by 310
CMR 19.080(2); a specific statement that the application of certain specified
regulation(s) is altered or waived; and a specification of the requirements or
conditions imposed, if any. The determination of the Regional Director is final
unless, within 21 days, an appeal is taken to the Commissioner pursuant to the
provisions of 310 CMR 19.080(7). The Regional Director shall notify by mail the
person requesting the variance, the board of health, and any abutter who has
requested notice of the determination of the action taken upon the
request.
(7)
Appeal to
the Commissioner.
(a) A person
requesting a variance from the application of 310 CMR 19.000, the board of
health where the affected property is located, or any aggrieved party may
appeal the determination of the Regional Director to the
Commissioner.
(b) An appeal is
taken by delivering a request for a hearing to the Commissioner within the time
period established by 310 CMR 19.080(6) that identifies the request for a
variance, states the determination of the Director upon it, specifies why the
party is aggrieved and the grounds for the appeal. The Department shall hold a
hearing upon and determine the appeal pursuant to the provisions of
310 CMR
1.00. In any such proceeding it shall be the burden of
the person requesting the variance to demonstrate how the criteria are
met.
(c) Notice of an appeal shall
be given to the applicant by the party appealing the decision concurrently with
filing the appeal.
(8)
Expiration, Modification or Suspension of a Variance.
Any variance or other modification made pursuant to 310 CMR 19.080 may be
subject to such qualification, revocation, suspension, or expiration as the
Department expresses in the variance. A variance or other modification made
pursuant to 310 CMR 19.080 may otherwise be revoked, modified, or suspended
pursuant to
310 CMR
19.039 or
19.040.
Notes
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