42-369. Variances (Watershed Regulations)

  1. Purpose. Watershed Regulation Variances are intended to provide limited relief from the requirements of Article VIII Subpart B water supply watershed regulations. Water Supply Watershed Protection in those cases where the strict application of the provisions of this Chapter would result in unnecessary hardship. Any use which requires a Watershed Regulation Variance shall not be permitted without the approval of the Water Quality Board in accordance with the requirements and procedures set forth in this section.
  2. Application.
    1. Pre-application Conference. Each applicant for a Watershed Regulation Variance shall meet with the Water Quality Administrator in a pre-application conference no later than one (1) calendar week prior to the date the application is due. The purposes of this conference are to provide additional information regarding the review process and assistance in the preparation of the application.
    2. Application. Each application for a Watershed Regulation Variance shall be submitted along with the appropriate fee and site plan, to the Water Quality Administrator on or before the first business day of the month. Applications may be modified by the Water Quality Administrator as necessary, who may require the applicant to supply additional information pertaining to the Watershed Variance. Incomplete applications must be resubmitted on or before the first business day of the month or will not be processed until the proceeding month.
    3. Review Schedule. No formal review schedule is established for a Watershed Regulation Variance from Article VIII Subpart B. Water Supply Watershed
    4. Fees. Any review fee established by the Commissioners shall be submitted with the application.
  3. Staff Review. The Water Quality Administrator shall process and review all applications for Watershed Regulation Variances. The Water Quality Administrator shall notify in writing each local government having jurisdiction in the watershed of the Watershed Regulation Variance request, the notice for which shall include a description of the Watershed Regulation Variance being requested. Local governments receiving notice of the Watershed Regulation Variance request may submit comments to the Water Quality Administrator prior to a decision by the Water Quality Board. The Water Quality Administrator shall prepare a staff recommendation for the Water Quality Board on the application for a Watershed Regulation Variance.
  4. Formal Review. Prior to taking any action on a Watershed Regulation Variance, the Water Quality Board shall consider the Water Quality Administrator’s recommendation on the Watershed Regulation Variance. Comments received from local governments (if applicable) shall become a part of the record of proceedings of the Water Quality Board. The Water Quality Board shall refuse to hear an application for a Watershed Regulation Variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application. The Water Quality Board shall not grant a Watershed Regulation Variance without making the following three (3) findings, which shall be recorded in the permanent record of the case, and shall include the factual reasons on which they are based:
    1. Finding One (1). There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this Chapter, specifically Article VIII (Natural Resources) Subpart B. (Water Supply Watershed Protection). In order to determine that there are practical difficulties or unnecessary hardships, the Water Quality Board must find that the following conditions exist:
      1. If the applicant complies with the provisions of this Chapter, the applicant can secure no reasonable return from, nor make reasonable use of, his/her property. Merely proving that the Watershed Regulation Variance would permit a greater profit to be made from the property will not be considered adequate to justify the Water Quality Board in granting a Watershed Regulation Variance. Moreover, the Water Quality Board shall consider whether the Watershed Regulation Variance is the minimum possible deviation from the terms of this Chapter that will make possible the reasonable use of the property;
      2. The hardship results from the application of this Chapter to the property rather than from other factors, such as deed restrictions or other hardship;
      3. The hardship is due to the physical nature of the applicant’s property, such as its size, shape or topography, which is different from that of neighboring property;
      4. The hardship is not the result of the actions of an applicant who knowingly or unknowingly violates this Chapter or who purchases the property after the effective date of this Chapter then comes to the Water Quality Board for relief; and/or
      5. The hardship is peculiar to the applicant’s property, rather than the result of conditions that are widespread. If other properties are equally subject to the hardship created in the restriction, then granting a Watershed Regulation Variance would be a special privilege denied to others and would not promote equal justice.
    2. Finding Two (2). The Watershed Regulation Variance is in harmony with the general purpose and intent of this Chapter, specifically Article VIII (Natural Resources) Subpart B (Water Supply Watershed Protection), and preserves its spirit.
    3. Finding Three (3). In the granting of the Watershed Regulation Variance, the public safety and welfare have been assured and substantial justice has been done. The Water Quality Board shall not grant a Watershed Regulation Variance if it finds that doing so would in any respect impair the public health, safety or general welfare.
  5. Environmental Management Commission Review. Where the application calls for the granting of a Watershed Major Variance, and if the Water Quality Board decides in favor of granting the Watershed Regulation Variance, the Water Quality Board shall prepare a preliminary record of the hearing with all deliberate speed. The preliminary record of the hearing shall include the: (1) Watershed Regulation Variance application; (2) hearing notices; (3) evidence presented; (4) motions, offers of proof, objections to evidence and rulings on them; (5) proposed findings and exceptions; and (6) proposed decision, including all conditions proposed to be added to the Watershed Regulation Variance. The preliminary record shall be sent to the Environmental Management Commission for its review as follows:
    1. Situation One (1). If the Environmental Management Commission concludes from the preliminary record that the Watershed Regulation Variance qualifies as a Watershed Major Variance and that the property owner can secure no reasonable return from, nor make any practical use of, the property unless the proposed Watershed Regulation Variance is granted and that the Watershed Regulation Variance, if granted, will not result in a serious threat to the water supply, then the Environmental Management Commission may approve the Watershed Regulation Variance as proposed or approve the proposed variance with conditions and stipulations. The Environmental Management Commission will prepare a Commission decision and send it to the Water Quality Board. If the Environmental Management Commission approves the Watershed Regulation Variance as proposed, the Water Quality Board shall prepare a final decision granting the proposed Watershed Regulation Variance. If the Commission approves the variance with conditions and stipulations, the Water Quality Board shall prepare a final decision, including such conditions and stipulations, granting the proposed Watershed Regulation Variance.
    2. Section Two (2). If the Commission concludes from the preliminary record that the Watershed Regulation Variance qualifies as a Watershed Major Variance and that the property owner can secure a reasonable return from or make a practical use of the property without the Watershed Regulation Variance or that the Watershed Regulation Variance, if granted, will result in a serious threat to the water supply, then the Commission may deny approval of the Watershed Regulation Variance as proposed. The Commission shall prepare a Commission decision and send it to the Water Quality Board. The Water Quality Board will prepare a final decision denying the Watershed Regulation Variance as proposed.
  6. Conditions. The Water Quality Board may, in granting a Watershed Regulation Variance, prescribe: (1) additional conditions regarding the location, character and other features of the proposed building, structure or use; (2) additional safeguards; (3) a time limit within which the action for which a Watershed Regulation Variance is sought shall be begun; (4) a time limit within which the action for a Watershed Regulation Variance is sought shall be completed; and (5) a time duration within which construction, operation or installation shall commence on the project for which the variance was obtained. If a Watershed Regulation Variance for the construction, alteration or use of property is granted, such construction, alteration or use shall be in accordance with the approved site plan.
  7. Variance Validity. Upon issuance of a Watershed Regulation Variance, it shall then be considered as a Water Supply Watershed Use Permit (see §42-358 (Water Supply Watershed Use Permits)), and shall adhere to the permit validity outlined therefore.