HomeMy WebLinkAbout2010 08-02 City Council Manager Workshop PacketAGENDA
MAPLEWOOD CITY COUNCIL
MANAGER WORKSHOP
5:15 P.M. Monday, August 2, 2010
Council Chambers, City Hall
A. CALL TO ORDER
B. ROLL CALL
C. APPROVAL OF AGENDA
D. UNFINISHED BUSINESS
1. Discussion of Zoning Variance Issue (45 Minutes)
2. Extreme Green Makeover — Announcement of Winner (Van Leaves at 6:15 p.m. for On-
Site Surprise Announcement)
E. NEW BUSINESS
F. ADJOURNMENT
THIS PAGE IS INTENTIONALLY LEFT BLAND
Workshop Agenda Item D -I
AGENDA REPORT
TO: City Manager, Jim Antonen
FROM: H. Alan Kantrud, City Attorney
SUBJECT: Variance Standards Discussion
DATE: July 28, 2010
INTRODUCTION
The Supreme Court recently decided a case that has changed the long- standing
analysis that the City would normally undertake when deciding whether or not to grant
variances. This discussion is intended to provide some direction to Council and to
answer questions about the interpretation of the Court of the "new" variance standard.
To assist in the discussion, I have included not only the decision /court opinion where the
standard is discussed, but some relevant LMC materials regarding variances and a short
analysis done by the League's general counsel.
I have long- argued that the best decisions made by cities are those that are supported
with a clear and well- reasoned record or set of findings. Variance decisions will now
require that analysis.
DISCUSSION
For many years cities have been making decisions regarding variances based on the
concept that the use in question is reasonable under the circumstances, assuming that
there is some sort of hardship unique to the property. However, the Minnesota Supreme
Court has recently interpreted the statute differently.
Krummenacher vs. City of Minnetonka (published July 21, 20101) was a case that had to
do with the expansion of a non- conformity. The resident wanted to build a second story
onto a garage that was already too close to a neighboring lot, but was nonetheless a
legal non - conforming use. While the City granted the variance, saying that the use was
reasonable, doing the standard analysis, the litigant who sued got to bring the matter to
the Supreme Court...
The salient point of the case can be found at the bottom of page twenty of the decision
itself:
"We are unable to interpret the statutory language to mean anything other than what the
text clearly says --that to obtain a municipal variance, an applicant must establish that
"the property in question cannot be put to a reasonable use if used under conditions
allowed by the official controls. "" Krummenacher vs. City of Minnetonka, A08 -1988 at 20
(emph. added).
This analysis from the Supreme Court make it clear that municipalities are constrained
by the language of the statute, which is clear in its directive from the interpretation they
provide...
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Workshop Agenda Item D -I
As the law stands, a variance cannot be granted unless it is it is clear that the property
owner cannot put the property to any reasonable use without the variance.
One of the most important points that you should consider is the notion that you may
have a community standard to guide your variance decisions by. Reasonable use is still
at least dictated by the community, or at least not defined statutorily. This is important
since it provides the City the opportunity to decide what a reasonable use is in instances
where the city has clear expectations.
If there is no particular goal in mind, then no special attention should be given. In the
case of Gladstone, for example, the City has very clear expectations, many of which are
described in our plan for the area.... In determining whether or not the owner of a
property can make a `reasonable use" of the property, it is incumbent on the City to
declare what its expectations are for the area. In the case of Gladstone, we can look to
the Comprehensive Plan for the City to see the type of density we are planning for and
more specifically to the Gladstone Comprehensive Plan for the type of density. Granted,
not all areas of the City will have this sort of guidance, but some areas do.
Going forward, you should consider variance requests more carefully to be sure. The
standard has changed: can the property be used in a reasonable manner without a
variance from whatever control is being looked at? If the answer is "yes" then you
should not grant the variance.
Attachments:
1. LMC Summary
2. Case Summary
3. Case itself
4. LMC page /section of variances
5. LMC FAQ
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Attachment 1
Taken from the LMC Bulletin, authored by Torn Grundhoefer; general counsel
The court ruling holds cities to a much stricter standard, which considerably limits
variance opportunities.
(Published Jul 21, 2010)
The Minnesota Supreme Court recently issued a decision that changed the longstanding
interpretation of the statutory standard for granting zoning variances.
In the case of Krummenacher v. City of Minnetonka, the Supreme Court narrowly
interpreted the definition of "undue hardship" and held that the "reasonable use" prong of
the "undue hardship" test is not whether the proposed use is reasonable, but rather
whether there is reasonable use in the absence of the variance. This is a much stricter
standard, which considerably limits variance opportunities.
The decision
The City of Minnetonka issued a variance to a residential property owner permitting the
expansion of a legal, non - conforming garage. The city, relying on a 1989 Court of
Appeals decision, concluded that the grant of the variance was reasonable. The city's
decision was challenged by an adjacent property owner. Both the District Court and the
Minnesota Court of Appeals agreed that the city's decision was appropriate. On June 24
the Minnesota Supreme Court reversed the Court of Appeals and found the city's
decision impermissible.
The Supreme Court examined the statutory definition of "undue hardship" in Minnesota
Statutes, section 462.357, and concluded that city authority to issue a variance is limited
to those very rare cases where the property cannot be put to "a reasonable use" without
the variance. This establishes a high threshold for both the city and the property owner
when considering variance requests.
The Supreme Court reviewed the parallel county authority that allows for a variance in
situations of "practical difficulties" or "hardship." The Supreme Court found that the city
authority was more limited because it did not contain the "practical difficulties"
provision. The court explicitly recognized that it was changing a longstanding standard
that cities have relied on in considering variance requests. In particular, the court
specifically rejected a 1989 Court of Appeals interpretation of the phrase "undue
hardship," which allowed for the grant of a variance in circumstances where the
"property owner would like to use the property in a reasonable manner that is prohibited
by the ordinance."
The Supreme Court stated that "unless and until the Legislature takes action to provide a
more flexible variance standard for municipalities, we are constrained by the language of
the statute to hold that a municipality does not have the authority to grant a variance
unless the applicant can show that her property cannot be put to a reasonable use without
the variance."
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Attachment 1
Impact of the decision
Because of the far - reaching nature of the decision, there are probably at least four
responses that cities should think about—at least until a legislative correction can be
achieved:
* The city should re- evaluate the criteria that it has historically used in deciding
whether or not to grant a variance. The Supreme Court's decision limits a city's
discretion. The ruling limits the authority to circumstances where the property owner can
demonstrate that there is not a reasonable use of the property absent the variance grant.
* In circumstances where the city council believes the grant of a variance is
appropriate, the city should take great care to make detailed finding describing why the
grant of the variance is necessary to provide the property owner with a reasonable use of
his or her property. What constitutes a reasonable use of property is not defined and may
differ depending on the unique circumstances of the property and attributes of various
communities.
* If a city routinely grants variances, this may be an indicator that it may want to re-
examine its zoning code to ensure that standards, setbacks, uses, and other requirements
are consistent with the city council's current vision for the community. In short, the
court's decision should act as an encouragement to cities to review their land use
practices.
* Cities may want to build greater flexibility into their existing conditional use permit,
planned unit development, and setback regulations to explicitly afford greater latitude to
allow "variance- like" approvals under the zoning code. For instance, a city might
establish alternative setback requirements to allow for construction that is consistent with
neighborhood attributes.
Legislative action
The restrictive court decision has caused a number of League members to call for a
legislative response. The decision, its impact, and a possible legislative response will be
discussed in the League's Improving Service Delivery Policy Committee this summer. It
is anticipated that the League will support a legislative change to provide cities with
greater flexibility perhaps something similar to the county authority.
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Attachment 2
Wednesday, February 3, 2010, 9:00 a.m.
Supreme Court Courtroom, State Capitol
Beat L. Krummenacher, Appellant vs. City of Minnetonka, Respondent, JoAnne K.
Liebeler, Respondent — Case No. A08 -1988: Respondent JoAnne Liebeler applied to
respondent City of Minnetonka for a variance to allow her to build a finished structure,
to be used as a family room and yoga and craft studio, on top of the flat roof of a
detached nonconforming garage on her property. Appellant Beat Krummenacher, one
of Liebeler's neighbors, opposed the variance. The city granted the requested variance;
Krummenacher appealed to the district court. In connection with his appeal,
Krummenacher served Liebeler with written discovery requests, which Liebeler declined
to answer. The district court ruled that it would allow Krummenacher to conduct
discovery only if the court determined that the city's decision to grant the requested
variance was unreasonable, arbitrary, or capricious. In a second order, the district court
concluded that the city's decision to grant the variance was not unreasonable, arbitrary,
or capricious. The court of appeals affirmed. Three issues are before the supreme
court: (1) whether the city's decision to grant the variance was unreasonable, arbitrary,
or capricious; (2) whether the city was prohibited from granting the variance by Minn.
Stat. § 462.357, subd. 1e(a) (2008), which authorizes municipalities to grant variances
from zoning standards when strict enforcement of such zoning standards would cause
undue hardship; and (3) whether Krummenacher should have been allowed to conduct
discovery during his appeal to the district court from the city's decision. (Hennepin
County)
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Attachment 3
STATE OF MINNESOTA
IN SUPREME COURT
Court of Appeals
Gildea, J.
Took no part, Dietzen, J.
Beat L. Krummenacher,
Appellant,
vs.
City of Minnetonka,
Respondent,
JoAnne K. Liebeler,
Respondent.
Filed: June 24, 2014
Office of Appellate Courts
Paul W. Chamberlain, Ryan R. Kuhlmann, Chamberlain Law Firm, Wayzata, Minnesota,
for appellant.
George C. Hoff, Shelley M. Ryan, Hoff, Barry & Kozar, P.A., Eden Prairie, Minnesota,
for respondent City of Minnetonka.
James M. Susag, Larkin, Hoffman, Daly & Lindgren Ltd., Bloomington, Minnesota, for
respondent JoAnne Liebeler.
Susan L. Naughton, St. Paul, Minnesota, for atnicus curiae League of Minnesota Cities.
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SYLLABUS
1. Although Minn. Stat. § 462.357, subd. 1 e(a) (2008), restricts the ability
of property owners to expand their nonconforming uses, subdivision 1 e(b) authorizes
a municipality to allow an expansion pursuant to ordinance. Because the legislature
gave the municipality discretion to authorize the expansion of a nonconforming use, the
decision to allow respondent to seek a variance under the ordinance to expand a
nonconformity was consistent with Minn. Stat. § 462.357, subd. le.
2. Under Minn. Stat. § 462.357, subd. 6, to establish the "undue hardship"
required for a variance, a variance applicant must establish that "the property in question
cannot be put to a reasonable use" without the variance.
3. Because the municipality applied the wrong standard, a remand for
reconsideration of respondent's variance application under the correct standard is
appropriate.
Reversed and remanded.
OPINION
GILDEA, Justice.
This case involves the decision of respondent City of Minnetonka to grant a
variance to respondent JoAnne Liebeler so that she could expand her nonconforming
garage. Appellant Beat Krummenacher is Liebeler's neighbor and he challenges the
City's decision. The district court upheld the City's variance, and the court of appeals
affirmed. See Krummenacher U City of Minnetonka, 768 N.W.2d 377, 384 (Minn. App.
2400. Because we conclude that the City applied the wrong standard to Liebeler's
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variance request, we reverse and remand to the City for reconsideration under the correct
standard.
Liebeler owns property located in Minnetonka. Krummenacher is Liebeler's
neighbor to the west. Liebeler's property consists of a 2.4 -acre lot, which contains a
2,975- square -foot home and an attached two -car garage. The property also contains a
detached flat - roofed garage that a previous owner constructed sometime in the 1940s.
The City has an ordinance requiring that the detached garage be set back a minimum of
50 feet from the property's boundary line. Minnetonka City Code § 300.10. Liebeler's
garage was constructed before this ordinance went into effect, and it does not satisfy the
setback requirement. Specifically, the garage is nonconforming because it is set back
only 17 feet from the front yard lot line. Because the garage was constructed before the
ordinance became effective, however, the garage is a permissible nonconformity.
On March 31, 2008, Liebeler applied for a variance to expand the detached garage
by adding a pitched roof and a second -story room above the garage that could be used as
a yoga studio and craft room. Liebeler's proposal was to renovate the garage itself, both
to fix its leakage problems and improve its appearance, and also to expand the garage by
adding a living space above it. Because adding a second story to the garage would result
in a vertical expansion of a nonconforming structure, Liebeler was required, under the
Minnetonka City Code, to apply for a variance from the City.' See Minnetonka City
It appears that Liebeler did not attempt to move the garage to a conforming
location because the unusual characteristics of the lot made relocation impracticable.
Liebeler's lot is L- shaped with only 45 -feet of frontage on the road. Moreover, there is a
(Footnote continued on next page.)
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Code § 300.29.3(g). Liebeler's proposed addition would not alter the footprint of the
garage and would comply with the City zoning requirements for a detached garage with
respect to maximum height and size.
The City's Planning Commission held a public hearing on May 15, 2008, to
consider Liebeler's request. Both Liebeler and Krummenacher had an opportunity to
present their arguments at that hearing. Liebeler explained that she believed that the flat
roof was causing leakage problems and that the structure itself needed to be updated.
Krummenacher objected to Liebeler's proposed project, explaining that the added height
of the garage would obstruct his view to the east.
The Planning Commission approved Liebeler's request for the variance. The
Planning Commission based its decision on the following findings. (1) the denial of a
variance would cause "undue hardship" because of the "topography of the site, width of
the lot, location of the driveway, and existing vegetation''; (2) the preexisting
nonconforming setback was a "unique circumstance "; (3) Liebeler's proposal would
comply with the "intent of the ordinance" because it satisfied the "zoning ordinance
requirements for a detached garage for maximum height and size" and did not alter the
footprint of the garage; and (4) the proposal would not alter the "neighborhood character"
because it would "visually enhance the exterior of the garage" and because there was
(Footnote continued from previous page.)
significant slope immediately behind the garage, making it difficult to move the garage
back.
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another detached garage on a nearby property that was also set back only 17 feet from the
road.
Krummenacher appealed the Planning Commission's decision to the Minnetonka
City Council. The City Council held a public hearing on the variance request on June 30,
2008, at which both sides presented their arguments. After an examination of the record,
the City Council upheld the Planning Commission's decision and findings. The City
Council found that Liebeler's "proposal is reasonable and would meet the required
standards for a variance." The council listed four requirements and found that the
variance satisfied those requirements as follows:
(1) Undue Hardship: there is an undue hardship due to the topography
of the site, width of the lot, location of the driveway and existing
vegetation.
(2) Unique Circumstance: The existing, non - conforming setback is a
circumstance that is not common to every similarly zoned property.
(3) Intent of the Ordinance: The improvements would not increase the
footprint of the garage, and would comply with the zoning ordinance
requirements for a detached garage for maximum height and size.
(4) Neighborhood Character: The garage improvements would not alter
the character of the neighborhood. The improvements would visually
enhance the exterior of the garage. There is also a detached garage on the
property to the east that is set back 17 feet from [the street].
Krummenacher then brought suit in district court challenging, among other things,
the City's finding of undue hardship. Krummenacher served discovery requests asking
for additional documents from the City, but the City objected to providing more than the
City's record on the grounds that the case was properly subject to record review. The
court declined to order the City to produce the additional documents, and affirmed the
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City's decision to grant the variance to Liebeler, concluding that the City's decision was
not "arbitrary and capricious."
Krummenacher appealed to the court of appeals. On appeal, he raised three issues.
First, he argued that Minn. Stat. § 462.357, subd. le(a) (2408), prohibits the City from
granting a variance to allow the expansion of a nonconforming use. Krummenacher, 768
N.W.2d at 380 -81. Second, he argued that the City's approval of the variance request
was "arbitrary and capricious" because Liebeler had failed to meet the "undue hardship"
standard of Minn. Stat. § 462.357, subd. 6. See Krummenacher, 768 N.W.2d at 382 -84.
Last, he argued that the district court erred in refusing to compel additional discovery by
the City. See 1d. at 384. The court of appeals affirmed the district court's decision in all
respects.
We granted Krummenacher's petition for review. On appeal to our court,
Krummenacher advances the same three arguments he made to the court of appeals.
1.
We turn first to Krummenacher's argument that Minn. Stat. § 462.357, subd. le,
prohibits a municipality from granting a variance that allows for the expansion of a
nonconforming structure. Section 462.357, subdivision le, provides in relevant part:
(a) Any nonconformity, including the lawful use or occupation of land
or premises existing at the time of the adoption of an additional control
under this chapter, may be continued, including through repair,
2 On January 26, 2010, Liebeler filed a motion to dismiss, arguing that we should
dismiss the case on the grounds that construction of the expanded garage has been
completed, rendering Ki claims moot. The motion to dismiss is denied.
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replacement, restoration, maintenance, or improvement, but not
including expansion ....
(b) A municipality may, by ordinance, permit an expansion or impose
upon nonconformities reasonable regulations to prevent and abate
nuisances and to protect the public health, welfare, or safety.
(Emphasis added.)' Krummenacher argues that because the plain language of paragraph
(a) of subdivision le prohibits the expansion of any nonconformity, the City's decision
allowing Liebeler to expand her nonconforming garage must be reversed. The City
argues that subdivision le(a) restricts the ability of property owners to expand
nonconforming uses, but that under subdivision le(b), a municipality is permitted to
allow an expansion pursuant to ordinance.
The construction of a statute is a question of law that we review de novo. Clark v.
Lindquist, 683 N.W.2d 784, 785 (Minn. 2044). To interpret a statute, we first assess
' In its brief, the City cites the 2009 version of section 462. 357, subdivision le(a)
which reads:
Except as otherwise provided by law, any nonconformity, including the
lawful use or occupation of land or premises existing at the time of the
adoption of an additional control under this chapter, may be continued,
including through repair, replacement, restoration, maintenance, or
improvement, but not including expansion ...
Minn. Stat. § 462.357 (Supp. 2009) (new language in italics). The "except as otherwise
provided" language in this version of subdivision le(a), however, did not become
effective until May 22, 2009, which was after the City granted the variance. See Act of
May 21, 2009, ch. 149, § 4, 2009 Minn. Laws 2025, 2028. We therefore do not rely on
this version of the statute. We apply the 2008 version of subdivision le, the version of
the statute in effect when the variance was granted.
4 Liebeler did not propose to expand the footprint of her garage, and it is undisputed
that even as remodeled the garage would still be 17 feet from the yard line. In other
(Footnote continued on next page.)
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"whether the statute's language, on its face, is clear or ambiguous." Am. Family Ins.
Group v Schroedl, 616 N.W.2d 273, 277 (Minn. 2000). If the law is "clear and free from
all ambiguity," the plain meaning controls and is not "disregarded under the pretext of
pursuing the spirit." Minn. Stat. § 645.16 (2008); PhelpS V Commonwealth Land Title
1116. Co., 537 N.W.2d 271, 274 (Minn. 1995) ( "Where the intention of the legislature is
clearly manifested by plain unambiguous language ... no construction is necessary or
permitted. "). The legislature has also stated that it intends the entire statute to be
effective. Minn. Stat. § 645.16 ( "Every law shall be construed, if possible, to give effect
to all its provisions. ")
This case is about a structure that does not conform with local land use
restrictions. We have recognized that a local zoning ordinance "may constitutionally
prohibit the creation of uses which are nonconforming." County of Freeborn v. Claussen,
295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972). As to "existing nonconforming uses,"
however, these "must either be permitted to remain or be eliminated by use of eminent
domain." Id. But a local government "is not required" to permit the expansion of such
nonconformities. Id.
Subdivision le is consistent with these principles. We read the subdivision in its
entirety and give effect to both paragraph (a) and paragraph (b). Minn. Stat. § 645.16;
(Footnote continued from previous page.)
words, the scope of the nonconformity would not be expanded if Liebeler's request were
granted. The City nevertheless concedes that the variance sought an "expansion" for
purposes of Minn. Stat. § 462.357, subd. le, and we treat it as such for purposes of this
opinion.
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see also In re Kenney, 374 N.W.2d 271, 274 (Minn. 1985) ( "A statute will be construed
so as to give effect to all of its parts. "). In paragraph (a), the legislature, with certain
exceptions not relevant here, prohibits a municipality from ordering the removal of
nonconformities. Further, the legislature has given property owners the right to repair or
replace a nonconformity so long as they do not expand the nonconformity. In other
words, as long as the property owner does not expand the nonconformity, she does not
need municipal approval to take corrective or remedial action on the nonconformity. But
under paragraph (b), if the property owner seeks to expand the nonconformity, the
municipality may, by ordinance, permit the expansion.
Consistent with the authority the legislature granted to it in paragraph (b) of
subdivision le, the City has an ordinance that addresses the expansion of
nonconformities. See Minnetonka City Code § 300.29(g)(1). This ordinance provides
that "an expansion of any non - conforming use may not be done without first obtaining a
variance." Id. Liebeler's proposed addition to her detached garage required a variance
because she proposed to "occup[y] space within a non - conforming area that was
previously not occupied ... vertically." lo'
Krummenacher argues that because state law is superior to municipal law, the City
cannot grant a variance pursuant to its own ordinance if that variance violates state law.
5 The statute allows the municipality to require a nonconformity to be discontinued
when it "is discontinued for a period of more than one year," or "is destroyed by fire or
other peril to the extent of greater than 50 percent of its market value, and no building
permit has been applied for within 180 days of when the property is damaged." Minn.
Stat. § 462.357, subd. le(a)(1) and (2).
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See Denney v City of Duluth, 295 Minn. 22, 26, 242 N.W.2d 892, 894 (1972) ( "It is
fundamental that a municipality's power to regulate land use by zoning exists by virtue of
authority delegated to it by the state. "). But Minn. Stat. § 462.357, subd. le(b), grants the
City the discretion to permit the expansion of a nonconformity by ordinance. The City
provided a mechanism for expansion in section 300.29(g)(1), through a variance
application, and Krummenacher makes no argument that Liebeler's request for a variance
did not satisfy that section of the City Code.
Because the legislature gave the City discretion to authorize the expansion of
Liebeler's nonconforming garage, we hold that the City's decision to allow Liebeler to
seek a variance under the ordinance to expand a nonconformity was consistent with
Minn. Stat. § 462.357, subd. le.
11.
We turn next to Krummenacher's argument that the City's decision must be set
aside because it was arbitrary and capricious. Municipalities have "broad discretionary
power" in considering whether to grant or deny a variance. VanLandsehoot v. City of
Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983). We review such decisions "to
determine whether the municipality "was within its jurisdiction, was not mistaken as to
the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and to
determine whether the evidence could reasonably support or justify the determination."
In re Stadsvold, 754 N.W.2d 323, 332 (Minn. 2008) (internal quotation omitted).
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0
Iiummenacher argues that the City's decision was arbitrary and capricious
because the City did not apply the proper standard to determine whether Liebeler
demonstrated "undue hardship" as defined in Minn. Stat. §462.357, subd. 6. This
provision allows a city to grant a variance "from the literal provisions of the ordinance in
instances where their strict enforcement would cause undue hardship because of
circumstances unique to the individual property under consideration." Minn. Stat.
§ 462.357, subd. 6.
Minnesota Statutes § 462.357, subd. 6, provides a definition of "undue hardship,"
and that definition requires that three factors be met. Specifically, the statute defines
"undue hardship" as meaning,
the property in question cannot be put to reasonable use if used under conditions
allowed by the official controls, the plight of the landowner is due to
circumstances unique to the property not created by the landowner, and the
variance, if granted, will not alter the essential character of the locality.
ld_ To receive a variance, the applicant must show that he or she meets all of the three
statutory requirements of the "undue hardship" test. Id. In addition to satisfying the
"undue hardship" requirement, the statute allows municipalities to grant variances only
6 The Minnetonka City Code has almost identical provisions. Minnetonka City
Code § 300.071(a) ( "A variance may be granted from the literal provisions of this
ordinance in instances where strict enforcement would cause undue hardship because of
circumstances unique to the individual property under consideration and when it is
demonstrated that such actions would be consistent with the spirit and intent of this
ordinance. Undue hardship means the property in question cannot be put to a reasonable
use if used under conditions allowed by this ordinance, the plight of the landowner is due
to circumstances unique to the property not created by the landowner, and the variance, if
granted, would not alter the essential character of the neighborhood. ").
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"when it is demonstrated that such actions will be in keeping with the spirit and intent of
the ordinance." Id. Krummenacher argues that Liebeler's application does not meet any
of the requirements for "undue hardship."
The first factor a variance applicant must establish to satisfy the statute's definition
of "undue hardship" is that "the property in question cannot be put to reasonable use if
used under conditions allowed by the official controls." Minn. Stat. § 462.357, subd. 6;
See alSO Minnetonka City Code § 300.07.1(a). Kmmmenacher argues that based on the
plain and unambiguous language of the statute, a municipality may grant a variance only
when the property cannot be put to any reasonable use without it. According to
Krummenacher, Liebeler had a reasonable use for her garage without the addition of a
yoga studio and craft room —its current use as a storage space for vehicles.
Krummenacher argues therefore that the City did not have the statutory authority to grant
the variance.
The court of appeals rejected this argument, relying on its decision in Rowell U
Board of Adjustment of Moorhead, 446 N.W.2d 917 (Minn. App. 1989), rev. denied
(Minn. Dec. 15, 1989). The court in that case interpreted the "undue hardship" section of
Minn. Stat. § 462.357, subd. 6, as requiring a variance applicant to show that the
"property owner would like to use the property in a reasonable manner that is prohibited
by the ordinance." Id. at 922.
The City urges that we should embrace the interpretation of "undue hardship" from
Rowell, and it appears from the record that the Rowell "reasonable manner" standard is
the standard the City used in evaluating Liebeler's request for a variance. The City
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determined that the expansion of the garage was a reasonable use of the property and that
the request met the other requirements of the statute. Specifically, as reflected in the City
Council Resolution, the City found that "the proposal is reasonable" and with respect to
"undue hardship," that "[t]here is an undue hardship due to the topography of the site,
width of the lot, location of the driveway and existing vegetation."
The plain language of the statute and our precedent compel us to reject the City's
invitation to adopt Rowelts interpretation of "undue hardship." The statute provides that
to prove "undue hardship," the variance applicant must show that "the property in
question cannot be put to a reasonable use" without the variance. Minn. Stat. § 462.357,
subd. 6. Notwithstanding this language, the court of appeals concluded that "[t]his
provision does not mean that a property owner must show the land cannot be put to any
reasonable use without the variance." Rowell, 446 N.W.2d at 922. The court of appeals
essentially rewrote the statute to mean that a municipality may grant a variance when the
"property owner would like to use the property in a reasonable manner that is prohibited
by the ordinance." Id. at 922. Although the Rowell "reasonable manner" standard has
been used for over 20 years, we simply cannot reconcile that standard with the plain
language of the statute.
The Rowell standard is also inconsistent with our precedent. In support of the
application of a "reasonable manner" standard for determining "undue hardship," Rowell
cites Curry v Young, 285 Minn. 387, 173 N.W.2d 410 (1969), for the proposition that a
variance is "required where a setback requirement would force a property owner to build
a much smaller structure." Id. at 922. The version of Minn. Stat. § 462.357 in effect
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when Furry was decided did not contain the definition of "undue hardship" that is in the
current version of the statute. See Minn. Stat. § 462.357 (1969). Moreover, while we
discussed in Curry the dimensions of a structure that could theoretically be built to
comply with the statutory requirements, we based our determination that the variance was
properly granted on the municipality's ordinance. That ordinance required a showing of
"particular hardship," and we concluded that the standard was met because the
"plaintiffs' lot, in the absence of a variance, would be unusable for any purpose." Curry,
285 Minn. at 388-89, 396, 173 N.W.2d at 411, 415. The standard we applied in Curry is
more rigorous than the "reasonable manner" standard adopted in Rowell, and appears
consistent with the plain language of the first part of the "undue hardship" definition that
is in the current statute. See Minn. Stat. § 462.357, subd. 6.
In addition, in formulating the "reasonable manner" standard, the court in Rowell
appears to have relied on the "practical difficulties" standard.' See Rowell, 446 N.W.2d
at 922. But we have made a clear distinction between the "practical difficulties" standard
and the "undue hardship" standard. See Stadsvoid, 754 N.W.2d at 328 -31. As we
explained in Stadsvold, the "practical difficulties" standard applies to review of county
decisions to grant area variances, while the "undue hardship" standard applies to all
7 In support of the application of this standard, the court of appeals cited Merriam
Park Community Council, Inc. v. McDonough, 297 Minn. 285, 289 -90, 210 N.W.2d 416,
419 (1973), overruled on other grounds by Northwestern College U City of Arden Hills,
281 N.W.2d 865, 868 n.4 (Minn. 1979). As in Curry, the version of Minn. Stat.
§ 462.357 in effect when Merriam Park was decided did not contain the definition of
"undue hardship" that is in the current version of the statute. See 297 Minn. at 289 -90,
210 N.W.2d at 418 -19 (quoting statute).
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municipal decisions to grant variances. Id. at 327 -28 & n.2. Compare Minn. Stat.
§ 462.357, subd. 6, with Minn. Stat. § 394.27, subd. 7 (2008).
In Stadsvold, we interpreted Minn. Stat. § 394.27, subd. 7, which sets forth the
statutory standard for county variances. This statute contains both the "practical
difficulties" standard and a "particular hardship" standard. Specifically, section 394.27
authorizes a county to grant variances from "the terms of any official control" but only
when the property owner would face "practical difficulties or particular hardship" in
meeting "the strict letter of any official control." Minn. Stat. § 394.27, subd. 7. We
distinguished the "less rigorous `practical difficulties' " standard that applies to area
variance applications from the more rigorous "particular hardship" standard that applies
to use variance applications. StddSVO /d, 754 N.W.2d at 330 -31.
8 While Minn. Stat. § 462.357, subd. 6, and Minn. Stat. § 394.27, subd. 7, both set
forth standards for granting variances, section 462.357, subdivision 6, applies to
municipalities and section 394.27, subdivision 7, applies to counties.
9 The same dichotomy of language at issue in Stadsvold existed in the predecessor
to the municipal zoning statute, section 462.357. Until 1965, section 462.22 (enacted in
1929, repealed in 1965) granted municipalities the power to vary or modify the
application of a zoning regulation where there were "practical difficulties or unnecessary
hardship" in complying with the strict letter of the regulation. Minn. Stat. § 462.22
(1961). In 1965, the legislature replaced Minn. Stat. § 462.22 with Minn. Stat. § 462.357.
Act of May 22, 1965, c. 670, § 7, 1965 Minn. Laws 995, 1000 -03. The new statute
replaced the "practical difficulties or unnecessary hardship" standard with the current
single "undue hardship" standard. Id. "Undue hardship" was undefined in the statute
until 1982, when the legislature, borrowing the definition of "hardship" from the county
variance statute, Minn. Stat. § 394.27, added the current definition of "undue hardship" to
the statute. Act of Mar. 22, 1982, ch. 507, § 22, 1982 Minn. Laws 592, 593.
10 As we discussed in Stadsvold, "[t]here are two types of variances: use variances
and area variances. `A use variance permits a use or development of land other than that
(Footnote continued on next page.)
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Adopting the Rowell "reasonable manner" standard would be inconsistent with the
distinction we made in Stadsvold between the "practical difficulties" and "hardship"
standards. The legislature defined the "hardship" standard in the county statute the same
way it defined the "undue hardship" standard in the municipal statute." Because the
legislature used the same language in both the county and city variance statutes when
defining "hardship," our analysis in Stadsvold requires us to conclude that the "undue
hardship" standard in Minn. Stat. § 462.537, subd. 6, is more demanding than the
"practical difficulties" standard the court of appeals appears to have relied on in Rowell,
446 N.W.2d at 922.
Moreover, with respect to the "practical difficulties" standard, we identified in
Stadsvold several factors the county should consider in assessing whether that standard
was met:
(1) how substantial the variation is in relation to the requirement; (2) the
effect the variance would have on government services; (3) whether the
variance will effect a substantial change in the character of the
neighborhood or will be a substantial detriment to neighboring properties;
(4) whether the practical difficulty can be alleviated by a feasible method
other than a variance; (5) how the practical difficulty occurred, including
(Footnote continued from previous page.)
prescribed by zoning regulations.' ... An area variance controls `lot restrictions such as
area, height, setback, density and parking requirements.' " 754 N.W.2d at 329 (quoting
In re Appeal of Kenney, 374 N.W.2d 271, 274 (Minn. 1985)).
`Hardship' as used in connection with the granting of a variance means the
property in question cannot be put to a reasonable use if used under the conditions
allowed by the official controls; the plight of the landowner is due to circumstances
unique to the property not created by the landowner; and the variance, if granted, will not
alter the essential character of the locality." Minn. Stat. § 394.27, subd. 7.
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whether the landowner created the need for the variance; and (6) whether,
in light of all of the above factors, allowing the variance will serve the
interests of justice.
754 N.W.2d at 331 (footnote omitted). Rowell's interpretation of the "undue hardship"
standard, requiring only that the proposed use be "reasonable," would render the "undue
hardship" standard in section 462.357 less stringent than the "practical difficulties"
standard and much less stringent than the "particular hardship" standard in the county
variance statute, which the "undue hardship" standard appears to parallel. See Stadsvold,
754 N.W.2d at 331. In short, our analysis in Stadsvold simply does not leave room for
the Rowell "reasonable manner" standard. 12
12 The City argues that, even if Rowell was based on an erroneous reading of the text
of section 462.357, subdivision 6, the standard in Rowell has been used by municipalities
for many years in determining whether to grant a variance. See, e.g., Mohler v. City of St.
Louis Park, 643 N.W.2d 623, 631 (Minn. App. 2002); Nolan v. City of Eden Prairie, 610
N.W.2d 697, 701 (Minn. App. 2000); Sagstetter v. City of St Paul, 529 N.W.2d 488, 492
(Minn. App. 1995). The City suggests that, because the legislature has amended section
462.357 many times since Rowell and has not disturbed the court of appeals'
interpretation of the "undue hardship" standard, we should treat the legislature as having
ratified the Rowell standard. But the legislature has provided that "[w]hen a court of last
resort has construed the language of a law, the legislature in subsequent laws on the same
subject matter intends the same construction to be placed upon such language." Minn.
Stat. § 645.17(4) (2008). The court of appeals is not "a court of last resort." See
Anderson- Johanningmeier V. Mid Minnesota Women's Or., Inc., 673 N.W.2d 270, 276
(Minn. 2002) (stating that the court of appeals is not the court of last resort with respect
to statutory construction). Nor does the denial of a petition for review give a court of
appeals decision more precedential value than a court of appeals decision from which no
review was sought. Murphy v. Milbank MA Ins. Co., 388 N.W.2d 732, 739 (Minn.
1986). We therefore reject the City's argument that the legislature has ratified the Rowell
standard.
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We recognize that the standard we apply today, while followed elsewhere, is not
the universal rule. 13 For example, in Simplex Technologies, 1110, v. Town of Newington,
766 A.2d 713 (N.H. 2001), the New Hampshire Supreme Court provided a thorough and
insightful review of the development of land use variance law, and its practical
construction in modern times. The New Hampshire statute did not contain a specific
definition of "unnecessary hardship," like our statute does, and the court concluded that
its prior definition of the statutory term "unnecessary hardship" "ha[d] become too
restrictive in light of the constitutional protections by which it must be tempered." /d. at
717. The New Hampshire Supreme Court framed the issue in the following terms:
Inevitably and necessarily there is a tension between zoning ordinances and
property rights, as courts balance the right of citizens to the enjoyment of
13 While most jurisdictions use the phrase "unnecessary hardship" rather than "undue
hardship" as the applicable standard, many jurisdictions appear to require that the
variance applicant establish real hardship if the variance is denied rather than simply
requiring that the applicant show the reasonableness of the proposed use. See, e.g.,
Larsen v. Zoning Bd. of Adjustment of Pittsburgh, 672 A.2d 286, 290 -92 (Pa. 1996)
(holding that the "mere desire to provide more room for a family member's enjoyment" is
insufficient to constitute "unnecessary hardship" under the statute and requiring
applicants to show that, if the variance request is denied, the property will be "practically
useless "); OK Properties v Zoning Bd, of Review of Warwick, 601 A.2d 953, 955 (R.I.
1992) ( "The court has determined that unnecessary hardship exists when restricting the
property to the permitted uses within the zoning ordinance will deprive the property
owner of all beneficial use of the property and that granting a variance becomes
necessary to avoid an indirect confiscation of the property. "); Cochran v Fairfax County
Board of Zoning Appeals, 594 S.E.2d 571, 577 (Va. 2004) ( "[T]he [Board of Zoning
Appeals] has no authority to grant a variance unless the effect of the zoning ordinance, as
applied to the piece of property under consideration, would, in the absence of a variance,
interfere with all reasonable beneficial uses of the property, taken as a whole. ") (internal
quotation marks omitted); 3 Anderson's Law of Zoning § 20.16 (Kenneth H. Young ed.,
4th ed., 1996) (describing different states' approaches to the "unnecessary hardship"
standard and suggesting that most states give the term a fairly restrictive construction).
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private property with the right of municipalities to restrict property use. In
this balancing process, constitutional property rights must be respected and
protected from unreasonable zoning restrictions.
Id. at 716 -17. In light of these considerations, the New Hampshire Supreme Court said
that "unnecessary hardship" would, in the future, be established when a landowner
showed that (1) a zoning restriction as applied interferes with a reasonable use of the
property, considering the unique setting of the property in its environment; (2) no fair and
substantial relationship exists between the general purposes of the zoning ordinance and
the specific restriction on the property; and (3) the variance would not injure the public or
private rights of others. Id. at 717.
Had the Minnesota Legislature not defined "undue hardship" in Minn. Stat.
§ 462.357, subd. 6, we might consider the approach articulated in Simplex l5 A flexible
variance standard allows municipalities to make modest adjustments to the detailed
application of a regulatory scheme when a zoning ordinance imposes significant burdens
on an individual, and relief can be fashioned without harm to the neighbors, the
community, or the overall purposes of the ordinance. See David W. Owens, The Zoning
Variance: Reappraisal and Recommendations for Reform of a Much- Maligned Tool, 29
Colum. J. Envtl. L. 279, 317 (2004) ( "If the variance power is to be used both as a
14 These standards were subsequently codified. See N.H. Rev. Stat. Ann. § 674:33
(Supp. 2009).
15 The factors set forth in Simplex are not dissimilar to the factors we embraced in
Stadsvold in construing "practical difficulties." See 754 N.W.2d at 331 (discussing
factors for consideration under the "practical difficulties" standard).
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constitutional safeguard and as a tool for flexibility, zoning enabling acts and local
ordinances should be amended to delineate these two purposes and set different standards
for each. The failure to mare such a distinction underlies much of the past controversy
regarding variances. Courts and commentators have traditionally viewed the variances as
the formera very limited tool for avoidance of constitutional infirmity in extraordinary
cases. Most variance petitions, and consequently most board of adjustment decision-
making, have viewed the variances as the lattera tool to provide flexible
implementation rather than constitutional infirmity. ")
We recognize that the Ravel! "reasonable manner" standard represents a
longstanding interpretation of the undue hardship standard in Minn. Stat. § 462.357,
subd. 6, and that Minnesota municipalities have been granting variances under the
"reasonable manner" standard for many years. We also recognize that our decision will
result in a restriction on a municipality's authority to grant variances as compared with
the "reasonable manner" standard. But whatever value we may find in a more flexible
standard, particularly with regard to area variances, we cannot ignore the plain language
of the statute. See State V. PeCk, 773 N.W.2d 768, 773 (Minn. 2009) ( "We have no
opportunity to ignore part of the legislature's definition. "). We are unable to interpret the
statutory language to mean anything other than what the text clearly says —that to obtain
a municipal variance, an applicant must establish that "the property in question cannot be
put to a reasonable use if used under conditions allowed by the official controls." Minn.
Stat. § 462.357, subd. 6. Therefore, unless and until the legislature takes action to
provide a more flexible variance standard for municipalities, we are constrained by the
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language of the statute to hold that a municipality does not have the authority to grant a
variance unless the applicant can show that her property cannot be put to a reasonable use
without the variance.
Based on the plain language of the statute, and our precedent intezpreting language
similar to "undue hardship" in the context of a local government's authority to grant
variances, we reject the "reasonable manner" standard from Rowell. We hold that the
City inaccurately applied the first factor in the "undue hardship" definition of Minn. Stat.
§ 462.357, subd. 6. Our resolution of this issue makes it unnecessary for us to resolve
the other issues Krummenacher raises on appeal.
Having concluded that the City applied the law incorrectly, we must address the
remedy. In cases where a variance has been denied, the general rule is that "[i]f the
zoning authority's decision is arbitrary and capricious, the standard remedy is that the
court orders the permit to be issued." Stadsvold, 754 N.W.2d at 332; See also In re
Llvingood, 594 N.W.2d 889, 895 (Minn. 1999). But there is an exception to this general
rule "when the zoning authority's decision is premature and not necessarily arbitrary."
StadSVnld, 752 N.W.2d at 333 (internal quotation omitted). For example, in
Earthburners, Inc. v County of Carlton, where it was unclear whether the zoning
authority had applied the relevant statutory provisions, we remanded to the zoning
authority for "renewed consideration" under the appropriate standard. 513 N.W.2d 460,
463 (Minn. 1994).
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Similarly, in StadSUold, we remanded a variance application to the county board
because the board applied the wrong standard:
The Board, using an "adequate hardship" standard, did not consider
practical difficulties. The Stadsvolds argue the Board's decision was
therefore arbitrary and capricious. The Board did not have the benefit of our
holding in this case regarding "practical difficulties." We cannot tell
whether the Board's decision was arbitrary and capricious. Therefore,
remand is required to allow the Board to consider the Stadsvolds' variance
application in light of our holding that applications for area variances are to
be considered using the "practical difficulties" standard in Minn. Stat.
§ 394.27, subd. 7.
StadSvold, 754 N.W.2d at 332. Our precedent therefore supports the conclusion that a
property owner is entitled to have his or her variance application heard under the correct
legal standard, which supports a remand in this case. A remand is particularly
appropriate in this case because a property owner seeking to utilize her property should
not be penalized due to the City's application of the wrong legal standard. We reverse
and remand the matter to the City for renewed consideration of Liebeler's variance
request in light of our rejection of the "reasonable manner" standard from Rowell.
Reversed and remanded.
DIETZEN, J., took no part in the consideration or decision of this case.
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CHAFTF,R 14
2. Variances
Variances are an exception to rules laid out in a zoning ordinance. They are
permitted departures from strict enforcement of the ordinance as applied to a
particular piece of property if strict enforcement would cause the owner
"undue hardship." Variances are generally relate to physical standards (such
as setbacks or height limits) and may not be used to allow a use that is
prohibited in the particular zoning district. Essentially, variances allow the
landowner to break the rules that would otherwise apply
Minn. Stat. § 462.354, subd. 6. The law provides that requests for variances are heard by the board of
adjustment and appeals; in many smaller communities, the planning
commission serves that function. Generally, the board's decision is subject to
appeal to the city council. Under the statutory undue hardship standard, a
landowner is entitled to a variance if, and only if, the facts satisfy the three-
factor test for undue hardship, which are:
• The property cannot be put to a reasonable use without the variance.
• The landowner's situation is due to circumstances unique to the
property not caused by the landowner. The uniqueness generally
relates to the physical characteristics of the particular piece of
property and economic considerations alone cannot create an undue
hardship.
• The variance, if granted, will not alter the essential character of the
locality. This factor generally contemplates whether the resulting
structure will be out of scale, out of place, or otherwise inconsistent
with the surrounding area.
Myron v. City qfl`tymouth, 562
Variances are to be granted only if strict enforcement of a zoning ordinance
N.W.2d 21 (Minn. Ct App.
Apr. 15,1997), qrd, 581
causes undue hardship. A landowner who purchased land knowing a variance
N.W.2d 815 (Minn. 1998)
would be necessary in order to make the property buildable is not barred from
overruled on othergrounds by
requesting a variance on the grounds the hardship was self-imposed.
Wensmann Reahy, Inc. v. City of
findings concerning the reasons for the denial or approval and the facts upon
Eagan, 734 N.W.2d 623 (Mimi.
which the decision was based. The findings must adequately address the
2007).
statutory requirements. Best practice suggests seeking specific legal advice
City ofMaplewood v. Valiukas,
In granting a variance, the city may attach conditions, but the conditions must
1997 WL 53031, CO-96-1468
(Minn. Ct- App. Feb 11, 1997).
be reasonable and bear some relationship to the purpose of the variance.
Mohler V. City of St. Louis Park,
Broad discretion is permitted when denying a request for a variance, but there
643 N.W.2d 623 (Minn. Ct.
App. 2002).
must be legally sufficient reasons for the denial. The Board must make
Nolan v. City of E den Prairie,
findings concerning the reasons for the denial or approval and the facts upon
610 N.W.2d 697 (Minn. Ct.
which the decision was based. The findings must adequately address the
App. 2000).
statutory requirements. Best practice suggests seeking specific legal advice
Graham v. Itasca county
from the city attorney before making decisions on requests for variances.
Planning Commu, 601 N.W.2d
461 (Minn. Ct, App. 1999).
Stotts v, Wright County, 478 An applicant for a variance is not entitled to a variance merely because
1.W.24 802 (Minn. Ct. App.
1992). similar variances were granted in the past.
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Ca"TER 14
Mohler v. City of St. Louis Park Error by city staff in approving plans does not constitute undue hardship
643 N.W.2d 623 (Minn. Ct.
App, 2002)- entitling a person to a variance. While the result might be harsh, a
municipality cannot be estopped from correctly enforcing a zoning ordinance
even if the property owner relies to his or her detriment on prior city action.
Minn. Stat. § 462.357, subd. 6. No use variance may be granted if the use is prohibited in a zoning district. A
Kismet Investors v. Countv of city may grant use variances when a use is not prohibited in the zoning
Benton, 617 N.W.2d 85 (Minn, district, but the use is limited by another portion of the zoning ordinance. The
2000). requirements of unusual hardship and other statutory requirements still apply
to use variances.
G. Specific uses
1. Permitted uses
Chase v. City ofMinneapolls, Permitted uses are those that the zoning ordinance allows. It is generally
401 N.W.2d 408 (Minn. 1981). arbitrary and unlawful to deny a building permit for a permitted use unless
' C"ff L N""' v. the zoning of the property is subsequently changed to prohibit that use.
City of Rosemount, 467 N.W.2d
641 (Minn. Ct. App. 1991).
2. Accessory uses
Stodola v. City of Orono, 1994 Accessory uses are those uses that cannot stand alone and must be
WL 272900, C2-93-2445,
(Minn. Ct. App. 1994). accompanied by a principal, permitted use. For example, a garage may be an
accessory use in a residential area.
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3. Conditional uses
Minn. Stat. § 4623595.
Conditional uses are those activities that the zoning ordinance permits if
Minn. Stat. § 4623595, subd. 2.
certain conditions (that the council determines or the zoning ordinance
specifies) are met. The city must grant the conditional use permit (CUP) if the
applicant satisfies all the conditions. Conditional uses remain in effect
indefinitely as long as the use complies with the conditions. Note: Before a
CUP is granted, a city must provide notice and a public hearing. A notice of
the time, place and purpose of the hearing must be published in the official
newspaper of the municipality at least ten days prior to the day of the hearing.
A certified copy of the CUP must be recorded with the county recorder or the
registrar of titles, and must include a legal description of the land.
Trisko v. City of lVahe Park,
An applicant for a CUP is entitled to one when the controlling land use
566 N.W.2d 349 (Minn. Ct.
App. 1997)�
ordinances authorize the use, and there is evidence of the need for the permit.
Neighborhood opposition, alone, does not authorize the rejection of an
application for a CUP.
In re Livingood, 594 N.W.2d
When a local governinent denies a landowner a CUP without sufficient
889 (Minn. 1999).
evidence to support its decision, a court can order the issuance of the permit
subject to reasonable conditions.
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i t o
LEAGUE of
M11N1NESG TA
CITIES
What is a variance?
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141610,W"10140-8 100WIL %r 11,141
SINCE 1 9 1 3
VARIANCES
Frequently Asked Questions
A variance is a way that a city may allow an exception to part of a zoning ordinance. It is a
permitted departure from strict enforcement of the ordinance as applied to a particular piece of
property. A variance is generally for a dimensional standard (such as setbacks or height limits). A
variance allows the landowner to break a dimensional zoning rule that would otherwise apply.
Who grants a variance?
Minnesota law provides that requests for variances are heard by a body called the board of
adjustment and appeals; in many smaller communities, the planning commission or even the city
council may serve that function. A variance decision is generally appealable to the city council.
For more information, see Minn. Stat. § 462.357
When can a variance be granted?
A variance should be granted if strict enforcement of the zoning ordinance as applied to a
particular piece of property would cause the landowner "undue hardship." The landowner is
generally entitled to the variance if and only if the applicant meets the statutory three - factor test for
undue hardship. If the applicant does not meet all three factors of the statutory test, then a variance
should not be granted. For more information, see Minn_ Stat. § 462.357
What kind of authority is the city exercising?
A city exercises so- called "quasi-judicial" authority when considering a variance application. This
means that the city's role is limited to applying the legal standard of undue hardship to the facts
presented by the application. The city acts like a judge in evaluating the facts against the legal
standard. If the applicant meets the standard, then the variance should be granted. In contrast,
when the city writes the rules in zoning ordinance, the city is exercising "legislative" authority and
has much broader discretion.
What is undue hardship?
Undue hardship is a legal standard set forth in law that cities must apply the when considering
applications for variances. It is a three - factor test and applies to all requests for variances. To
constitute undue hardship, all three factors of the test must be satisfied_ For more information, see
Mimi. Stat. & 462.357.
This material is provided as general information and is not a substitute for legal advice.
Consult your attorney for advice concerning specific situations.
LEAGUE OF MINNESOTA CITIES 145 UNIVERSITY AVE. WEST PHONE: (651) 281 -1200 EAx: (651) 281 -1298
I N S U RAN C E TRUST ST. PAUL, MN 55103 -2044 TOLL FPEEF)(&0)4t a2AbM5MC.OPG
Workshop Agenda Item D1
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What are the undue hardship factors?
The first factor is that the property cannot be put to a reasonable use without the variance. This
factor means that the landowner would like to use the property in a particular reasonable way but
cannot do so under the rules of the ordinance. It does not mean that the land cannot be put to any
reasonable use whatsoever without the variance. For example, if the variance application is for a
building too close to a lot line, or does not meet the required setback, the focus of the first factor is
whether the request to place a building there is reasonable.
The second factor is that the landowner's problem is due to circumstances unique to the property
not caused by the landowner. The uniqueness generally relates to the physical characteristics of
the particular piece of property, that is, to the land, and not personal characteristics or preferences
of the landowner. When considering the variance for a building to encroach or intrude into a
setback, the focus of this factor is whether there is anything physically unique about the particular
piece of property, such as sloping topography or other natural features like wetlands or trees.
The third factor is that the variance, if granted, will not alter the essential character of the locality.
Under this factor consider whether the resulting structure will be out of scale, out of place, or
otherwise inconsistent with the surrounding area. For example, when thinking about the variance
for an encroachment into a setback, the focus is how the particular building will look closer to a lot
line and if that fits in with the character of the area.
What about economic considerations?
Sometimes landowners insist that they deserve a variance because they have already incurred
substantial costs or argue they will not receive expected revenue without the variance. State
statute specifically notes that economic considerations alone cannot create an undue hardship.
Rather, an undue hardship exists only when the three statutory factors are met.
Can a city grant a use variance?
Sometimes a landowner will seek a variance to allow a particular use of their property that would
otherwise not be permissible under the zoning ordinance. Such variances are often termed "use
variances" as opposed to "area variances" from dimensional standards. Use variances are not
generally allowed in Minnesota —state law prohibits a city from permitting by variance any use
that is not permitted under the ordinance for the zoning district where the property is located. For
more information, see Minn. Stat_ § 462.357
Is a public hearing required?
Minnesota statute does not clearly require a public hearing before a variance is granted or denied,
but many practitioners and attorneys agree that the best practice is to hold public hearings on all
variance requests. A public hearing allows the city to establish a record and elicit facts to help
determine if the application meets the undue hardship factors.
What is the role of neighborhood opinion?
Neighborhood opinion alone is not a valid basis for granting or denying a variance request. While
city officials may feel their decision should reflect the overall will of the residents, the task in
considering a variance request is limited to evaluating how the variance application meets the
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Workshop Agenda Item D1
Attachment 5
statutory undue hardship factors. Residents can often provide important facts that may help the
city in addressing these factors, but unsubstantiated opinions and reactions to a request do not form
a legitimate basis for a variance decision. If neighborhood opinion is a significant basis for the
variance decision, the decision could be overturned by a court.
What is the role of past practice?
While past practice may be instructive, it cannot replace the need for analysis of all three of the
undue hardship factors for each and every variance request. In evaluating a variance request, cities
are not generally bound by decisions made for prior variance requests. If a city finds that it is
issuing many variances to a particular zoning standard, the city should consider the possibility of
amending the ordinance to change the standard.
When should a variance decision be made?
A written request for a variance is subject to Minnesota's 60 -day rule and must be approved or
denied within 60 days of the time it is submitted to the city. A city may extend the time period for
an additional 60 days, but only if it does so in writing before expiration of the initial 60 -day period.
Under the 60 -day rule, failure to approve or deny a request within the statutory time period is
deemed an approval. For more information, see Minn. Stat. § 15.99
How should a city document a variance decision?
Whatever the decision, a city should create a record that will support it. In the case of a variance
denial, the 60 -day rule requires that the reasons for the denial be put in writing. Even when the
variance is approved, the city should create or direct that a written statement explaining the
decision. The written statement should explain the variance decision, address each of the three
undue hardship factors and list the relevant facts and conclusions as to each factor.
Can meeting minutes adequately document a variance decision?
If a variance in denied, the 60 -day rule requires a written statement of the reasons for denial be
provided to the applicant within the statutory time period. While meeting minutes may document
the reasons for denial, usually a separate written statement will need to be provided to the
applicant in order to meet the statutory deadline. A separate written statement is advisable even
for a variance approval, although meeting minutes could serve as adequate documentation,
provided they include detail about the decision factors and not just a record indicating an approval
motion passed.
Can a city attach conditions to a variance?
By law, a city may impose conditions when it grants variances to insure compliance and to
protect adjacent properties. Any such conditions should relate back to the subject of the
variance request. For instance, if a variance is granted to exceed an otherwise applicable
height limit, any conditions attached should presumably relate to mitigating the affect of
excess height. For more information, see Minn. Stat. § 462.357
What happens to the variance once granted?
A variance once issued is a property right that "runs with the land" so it attaches to and benefits
the land and is not limited to a particular landowner. A variance is typically filed with the county
recorder. Even if the property is sold to another person, the variance applies.
3 Packet Page Number 34 of 35
Agenda Item D2
AGENDA REPORT
TO: James Antonen, City Manager
FROM: Ann Hutchinson, Lead Naturalist
DuWayne Konewko, Community Development and Parks Director
SUBJECT: Extreme GREEN Makeover — Announcement of Winner
DATE: July 23, 2010 for the August 2 City Council Workshop
INTRODUCTION
In March of 2010, the City of Maplewood, in partnership with the Ramsey Washington Metro Watershed
District and the Ramsey County Library, kicked off the "Extreme GREEN Makeover ", an educational
program where Maplewood residents who attend at least one of a series of sustainable landscaping
programs could apply for a front yard makeover valued at $15,000.
DISCUSSION
Thirteen qualifying events were offered for applicants to attend, from Rain Garden classes to the
Extremely Green Summer Party. There was something of interest for everyone. All events had
information about making yards more sustainable. This project has generated a lot of positive publicity
for Maplewood and we have had high attendance for all of our qualifying classes. Thirty -one people
submitted applications, fourteen sites were visited by seven judges, and four finalists have been
selected. The final four will be interviewed on Wednesday, July 28, and one winner will be selected by
Friday, July 30. We'd like to have a little fun with the announcement of the winner, so we thought it
would be great if the City Council would join city staff and the seven judges for a van ride to the
winner's home to notify the winner of their good luck!
RECOMMENDATION
Staff requests that the City Council join city staff and the judges to make an on -site ANNOUNCEMENT
of the winner of the Extreme GREEN Makeover on Monday, August 2.
Packet Page Number 35 of 35