More often that not, those of us involved in trying to protect the natural resource from the environmental impacts of development are disappointed when it comes to the issuance of variances by the Administrative Hearing Officer. Well, there's a new sheriff in town, and it appears, some reason to be hopeful. Douglas Clark Hollmann recently took the position over from longtime hearing officer Stephen LeGendre.
In early March, members of the Hillsmere Community and I testified in opposition to the granting of a variance for the construction of a dwelling that was slated to be placed directly on top of a lot comprised entirely of non-tidal wetlands and a stream draining to Lake Hillsmere. The property is in the middle of system that conveys the stormwater from approximately 150 existing houses in the community, and if a house were build on it, not only would it likely flood regularly, the existing wetlands would be almost entirely destroyed.
Just yesterday, we received the decision from the Hearing Officer that the variance has been denied. Excellent news in and of itself, but from my perspective the most heartening element is the justification provided by Mr. Hollmann, exerpted below:
...I cannot find that the applicant has sustained his burden of showing that the granting of the critical area variances he has requested will not adversely affect water quality or adversely impact, fish, wildlife or plant habitat within the County's critical area. The evidence shows that the proposed work will increase the runoff across the property and on other properties...It is tempting to grant the variance and let the permitting process save the habitat protection area from further damage. To do so, however, would require me to speculate that the applicant can satisfy the concerns expressed in this decision instead of weighing each of the factors I must examine. Based on what I have before me, I cannot conclude that the work would not adversely affect water quality or adversely impact fish, wildlife, or plant habitat with the County's critical area or a bog protection area. It follows that if the burden of showing that the proposed work will not adversely affect environmental has not be carried, the variances requested, if granted, would not be in harmony with the general spirit and intent of the County's critical area program. I therefore find that the applicant has not sustained his burden as to [merit the granting of the variance].
In layman's terms, what that means, is that although he would have been completely within his right to grant the variance, and let the permitting agencies theoretically protect the resource through the permit review process, he instead decided to recognize that the shortcomings of the plan were so egregious that he would insert himself as a bulwark to protect the resource. Given the extent to which MDE and the Office of Planning and Zoning (which, to their credit, also opposed the variance) are burdened with the review of more projects than their staff can reasonably be expected to handle, the new Hearing Officer's attitude that, "The Muck Stops Here" is a welcome change of philosophy.
