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HomeMy WebLinkAboutVariance Research DocumentationState Supreme Court Narrowly Interprets Variance Authority nkE L MINNESOTA CITIES State Supreme Court Narrowly Interprets Variance Authority Page 1 of 2 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." Impact of the decision http: / /www.imc.org /page /l /varianceruling.jsp 8/12/2010 State Supreme Court Narrowly Interprets Variance Authority Page 2 of 2 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. Read the current issue of the Cities Bulletin Your LMC Resource Contact Tom Grundhoefer General Counsel (651) 281 -1266 or (800) 925 -1122 tgrundho@Imc.org Copyright 02010 League of Minnesota Cities, 145 University Ave. W, Saint Paul, MN 55103 -2044 1 Phone: (651) 281 -1200 1 Toll -Free: (800) 925 -1122 http: / /www.Ime.org /page /l /varianceruling.jsp 8/12/2010 o® LEAGUE OF CONNECTING & INNOVATING MINNESOTA SINCE 1913 CITIES 2011 Variance Legislation The changes, which are now in effect, may require some cities to change ordinances or statutory cross - references. After a long and contentious session working to restore city variance authority, the final version of HF 52 supported by the League and allies was passed unanimously by the Legislature. On May 5, Gov. Dayton signed 2011 Minnesota Laws, Chapter 19, amending Minnesota Statutes, section 462.357, subdivision 6 to restore municipal variance authority in response to Krummenacher v. City of Minnetonka, 783 N.W.2d 721 (Minn. June 24, 2010). The law also provides consistent statutory language between Minnesota Statutes, chapter 462 and the county variance authority of Minnesota Statutes, section 394.27, subdivision 7. In Krummenacher, the Minnesota Supreme Court narrowly interpreted the statutory 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 a reasonable use in the absence of the variance. The new law changes that factor back to the "reasonable manner" understanding that had been used by some lower courts prior to the Krummenacher ruling. The new law was effective on May 6, the day following the governor's approval. Presumably it applies to pending applications, as the general rule is that cities are to apply the law at the time of the decision, rather than at the time of application. Learn More Read more about variances in: Land Use Variances: Frenuently Asked Questions The new law renames the municipal variance standard from "undue hardship" to "practical difficulties," but otherwise retains the familiar three - factor test of (1) reasonableness, (2) uniqueness, and (3) essential character. Also included is a sentence new to city variance authority that was already in the county statutes: "Variances shall only be permitted when they are in harmony with the general purposes and intent of the ordinance and when the terms of the variance are consistent with the comprehensive plan." In addition, the new law clarifies that conditions may be imposed on granting of variances if those conditions are directly related to and bear a rough proportionality to the impact created by the variance. L Consult your attorney for advice concerning specific situations. LEAGUE OF MINNESOTA CITIES 145 UNIVERSITY AVE. WEST PHONE: (651) 281-1200 EAw(651)281 -1298 INSURANCE TRUST ST. PAUL, MN 55103 -2044 TOLL FREE: (800) 925 -1122 WEB: WWWLMC.ORG In evaluating variance requests under the new law, cities should adopt findings addressing the following questions: • Is the variance in harmony with the purposes and intent of the ordinance? • Is the variance consistent with the comprehensive plan? • Does the proposal put property to use in a reasonable manner? • Are there unique circumstances to the property not created by the landowner? • Will the variance, if granted, alter the essential character of the locality? Some cities may have ordinance provisions that codified the old statutory language, or that have their own set of standards. For those cities, the question may be whether you have to first amend your zoning code before processing variances under the new standard. A credible argument can be made that that the statutory language pre -empts inconsistent local ordinance provisions. Under a pre - emption theory, cities could apply the new law immediately without necessarily amending their ordinance first. In any regard, it would be best practice for cities to revisit their ordinance provisions and consider adopting language that mirrors the new statute. Attached are a collection of sample documents reflecting the 2011 variance legislation. The attached samples include a draft ordinance, application form, and findings of fact template. While the attached materials may contain provisions that could serve as models in drafting your own documents, your city attorney would need to review prior to council action to tailor to your city's needs. Your city may have different ordinance requirements that need to be accommodated. If you have questions about how your city should approach variances under this new statute, you should discuss it with your city attorney or contact Jed Burkett, LMC land use attorney, at jburkett�a Imc.org or (651) 281 -1247, or Tom Grundhoefer, LMC general counsel, at tgrundhonlmc.org or (651) 281 -1266. Jed Burkett 06/11 2 Attachment I. Sample Variance Ordinance City of Mosquito Heights ORDINANCE NO. 2011 -xx ORDINANCE PROVIDING FOR VARIANCES An ordinance providing for the issuance of variances within the City of Mosquito Heights. The City Council of Mosquito Heights ordains as follows: SECTION 1. BOARD OF APPEALS AND ADJUSTMENTS SUBD. 1. The Planning Commission shall be the Board of Appeals and Adjustments for this city, and as provided by Minn. Stat. Sec. 462.354, subd. 2 shall have the powers granted under Minn. Stat. Sec. 462.357, subd. 6, as they may be amended from time to time. SECTION 2. VARIANCES SUBD. 1. Pursuant to Minn. Stat. Sec. 462.357, subd. 6, as it may be amended from time to time, the Planning Commission, acting as a Board of Appeals and Adjustments, may issue variances from the provisions of this zoning code. A variance is a modification or variation of the provisions of this zoning code as applied to a specific piece of property. SUBD. 2. A. Variances shall only be permitted (i) when they are in harmony with the general purposes and intent of the ordinance and (ii) when the variances are consistent with the comprehensive plan. B. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance. SUBD. 3. "Practical difficulties," as used in connection with the granting of a variance, means that (i) the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; (ii) the plight of the landowner is due to circumstances unique to the property not created by the landowner; and (iii) the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute practical difficulties. Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems. SUBD. 4. Variances shall be granted for earth sheltered construction as defined in section 216C.06, subdivision 14, when in harmony with the ordinance. The board of appeals and adjustments may not permit as a variance any use that is not allowed under the zoning ordinance for property in the zone where the affected person's land is located. The board may permit as a variance the temporary use of a one family dwelling as a two family dwelling. The board may impose conditions in the granting of variances. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance. SECTION 3. EFFECTIVE DATE SUBD. 1. This ordinance becomes effective from and after its passage and publication. Passed by the City Council of Mosquito Heights on this 31 st day of May 2011. Attested: City Clerk Approved: Mayor This sample Is provided as general information and is not a substitute for legal advice. Consult your city attorney for specific advice on how to tailor to your city's needs. 4 Attachment II. Sample Variance Application CITY OF MOSQUITO HEIGHTS VARIANCE APPLICATION A. Applicant's Name: B. Address (Street, City, State, ZIP): C. Property Owner's Name (If different from above): D. Location of Project: Telephone Home: Work/Cell: Telephone Home: Work/Cell: E. Legal Description: F. Description of Proposed Project: G. Specify the section of the ordinance from which a variance is sought: H. Explain how you wish to vary from the applicable provisions of the ordinance: I. Please attach a site plan or accurate survey as may be required by ordinance. 5 J. Please answer the following questions as they relate to your specific variance request: In your opinion, is the variance in harmony with the purposes and intent of the ordinance? Yes ( ) No ( ) Why or why not? 2. In your opinion, is the variance consistent with the comprehensive plan? Yes ( ) No ( ) Why or why not? 3. In your opinion, does the proposal put property to use in a reasonable manner? Yes( ) No( ) Why or why not? 4. In your opinion, are there circumstances unique to the property? Yes ( ) No ( ) Why or why not? 5. In your opinion, will the variance maintain the essential character of the locality? Yes ( ) No ( ) Why or why not? The Planning Commission must make an affirmative finding on all of the five criteria listed above in order to grant a variance. The applicant for a variance has the burden of proof to show that all of the criteria listed above have been satisfied. The undersigned certifies that they are familiar with application fees and other associated costs, and also with the procedural requirements of the City Code and other applicable ordinances. Applicant's Signature: Date: Fee Owner's Signature: Date This sample Is provided as general Information and is not a substitute for legal advice. Consult your city attorney for specific advice on how to tailor to your city's needs. H. Attachment III. Sample Findings of Fact Template CITY OF MOSQUITO HEIGHTS MOSQUITO COUNTY, MINNESOTA RESOLUTION NO. 11 -XX RESOLUTION ADOPTING FINDINGS OF FACT AND REASONS FOR (APPROVAL/DENIAL) FOR VARIANCE APPLICATION OF (APPLICANT) AT (ADDRESS) FACTS 1. (Applicant) is the owner of a parcel of land located at (Address), Mosquito Heights, Minnesota; and, 2. The subject property is legally described as found on Exhibit A; and, 3. (Applicant) has applied to the City for a variance to build (Proposed Project) as described on Exhibit B 4. The proposal would vary from (Ordinance Requirement) in that it would (Deviation Sought). 5. Following a public hearing on the application, the Mosquito Heights Planning Commission has recommended (approval /denial) of the variance on (date). 6. The City Council of the City of Mosquito Heights reviewed the requested variance at its Meeting of June 9, 2011. 7. (Provide more facts about the project as necessary and relevant). APPLICABLE LAW 8. Minnesota Statute Section 462.357, subd. 6 provides: a. Variances shall only be permitted (a) when they are in harmony with the general purposes and intent of the ordinance and (b) when the variances are consistent with the comprehensive plan. b. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance. "Practical difficulties," as used in connection with the granting of a variance, means that (a) the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance; (b) the plight of the landowner is due to circumstances unique to the property not created by the landowner; and (c) the variance, if granted, will not alter the essential character of the locality. 7 9. City Ordinance allows variances if (Cite to relevant City variance standard, if applicable) 10. City Ordinance requires (cite to applicable ordinances, including that being varied from). CONCLUSIONS OF LAW 11. The requested variance (is /is not) in harmony with the purposes and intent of the ordinance because... 12. The requested variance (is /is not) consistent with the comprehensive plan because ... 13. The property owner (does /does not) propose to use the property in a reasonable manner because... 14. There (are /are not) unique circumstances to the property not created by the landowner because... 15. The variance (will /will not) maintain the essential character of the locality because ... NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Mosquito Heights, Minnesota, that the application to issue a variance to allow (Applicant) to build (Proposed Project) so as to deviate from (Ordinance Requirement) is hereby (Approved/Denied). Adopted by the City Council of Mosquito Heights on this 91h day of June 2011. Attested: City Clerk Approved: Mayor This sample is provided as general information and is not a substitute for legal advice. Consult your city attorney for specific advice on how to tailor to your city's needs.