Variance

The Commissioner may issue a variance of the criteria for evaluation of applications under 314 CMR 9.06 or 9.07 if the applicant demonstrates that: (1) All reasonable measures have been proposed to avoid, minimize, and mitigate adverse effects on the environment; and (2) The variance is justified by an overriding public interest or necessary to avoid a certification that so restricts the use of property as to constitute an unconstitutional taking without compensation. The applicant may file an application for a variance with the Commissioner of the Department stating the proposed measures to avoid, minimize, and mitigate adverse effects and evidence of an overriding public interest or unconstitutional taking. If after public notice the Commissioner finds that the activity meets the variance criteria, the Commissioner shall specify which regulation(s) has been waived and what conditions must be met for certification. The Commissioner may consolidate variance decisions under 314 CMR 9.00, 310 CMR 10.36: (Reserved: Variance provision is found at 310 CMR 10.05(10)) and 10.58: Riverfront Area, and 310 CMR 9.21: Variances. Publication of the variance application in the Environmental Monitor shall constitute notice to the public and to agencies with acquisition authority of the Department's pending determination.