Code of Massachusetts Regulations
302 CMR - DEPARTMENT OF CONSERVATION AND RECREATION
Title 302 CMR 11.00 - Parkways, Traffic, And Pedestrian Rules
Section 11.09 - Variance
Current through Register 1531, September 27, 2024
(1) General. The Department recognizes that the literal application of 302 CMR 11.00 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 302 CMR 11.00, 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:
(3) Reasonable or Necessary. Where circumstances are appropriate, the Department may request the applicant to establish, in addition to the criteria listed in 302 CMR 11.09(2), either or both of the following:
(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 302 CMR 11.00 and who seeks relief from its application prior to taking any action subject to and in conflict with its provisions 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 302 CMR 11.09(2) and, where required by 302 CMR 11.09(3), in the form prescribed in 302 CMR 11.09(4)(a) through (d):
(5) Filings. A person requesting a variance from 302 CMR 11.00 must file a request with the Director of the Division of State Parks and Recreation or the Director of Watershed Protection, as the case may be. 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 Director, after considering a request for a variance, requesting and receiving such additional information as may be required, and holding a public hearing if the 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. If the Director grants the request in whole or in part, the Director's determination will include a specific finding that the request makes the showing required by 302 CMR 11.09(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 Director is final unless, within 21 days, an appeal is taken to the Commissioner pursuant to the provisions of 302 CMR 11.09(7). The Director shall notify by mail the person requesting the variance and any abutter who has requested notice of the action taken upon the request.
(7) Appeal to the Commissioner.
(8) Expiration, Modification or Suspension of a Variance. Any variance or other modification made pursuant to 302 CMR 11.09 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 302 CMR 11.09 may otherwise be revoked, modified, or suspended.