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(1) Upon receiving an appeal of a local board of health's variance decision under 75-5-305, MCA, the department shall determine within 30 days whether the appeal meets the requirements of (2) and notify the appellant in writing of its determination.

(2) The appeal to the department must be in writing and must provide the following information:

(a) the name of the appellant;

(b) the local government entity or entities that made the decision on the application for variance at the local level;

(c) a summary explanation of the project or development for which the variance is requested;

(d) a summary explanation of the variance that is sought;

(e) a statement of the law or ordinance at issue in the matter; and

(f) copies of all applications and supporting materials submitted to the local board of health, and of any written decisions issued by the local board of health.

(3) If the appeal does not fulfill the requirements of (2), the department shall state in its notice to the appellant the deficiencies that must be addressed in a resubmittal. The department shall also notify the appellant in writing when its submittal meets the requirements of (2).

(4) If the appeal fulfills the requirements of (2), the department shall proceed to review the local variance decision under the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, MCA.

(5) As provided in 2-4-612, MCA, the common law and statutory rules of evidence apply in department proceedings to review local board variance decisions. The parties may provide evidence and testimony to the department in addition to that presented to the local board.

(6) In evaluating the local board variance decision, the department shall apply the variance criteria in ARM 17.36.922(2), and may not consider local variance criteria. The department may substitute its judgment for that of the local board as to the interpretation and application of the variance criteria in ARM 17.36.922(2). However, the department shall be bound by the local board's interpretation of other local board rules in effect at the time of the local board's decision.

(7) Challenges to the applicability or validity of a rule of the local board are outside the scope of department review. Variance requests that do not seek to go below a state minimum standard are also outside the scope of department review. If a variance is requested from a local requirement that is more stringent than the requirements in this subchapter, the department may review the local board's decision only if the variance, if granted, would also require a variance from the requirements in this subchapter.

(8) The department shall issue a formal decision, including findings of fact and conclusions of law, within 30 days after the hearing process is completed.

History: 75-5-201, 75-5-305, MCA; IMP, 75-5-305, MCA; NEW, 2003 MAR p. 222, Eff. 2/14/03; AMD, 2011 MAR p. 1548, Eff. 8/12/11.

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