Agenda - Planning Commission - 07/07/2011

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2011 LEGISLATIVEISSUES City Variance Authority A Supreme Court ruling last year greatly limited cities' authority to grant variances. During the 2011 legislative session, the League of Minnesota Cities will work to restore that authority. In the meantime, cities must make adjustments. In the world of law, a single court ruling can suddenly and unexpect- edly change decades of precedence. That definitely proved to be true for municipal variance authority last year. In the case of Krummenacher v. City of Minnetonka, the Minnesota Supreme Court issued a decision last June that changed the longstanding interpretation of the statutory standard for granting zoning variances.The decision also went counter to 20 years of previous rulings by the Minnesota Court of Appeals. Background The City of Minnetonka issued a vari- ance to a residential property owner, permitting the vertical expansion of a legal, non -conforming garage. The city, relying on a 1989 Minnesota Court of Appeals decision and other judicial pre- cedence, concluded that the grant of the variance was appropriate.The city's decision was challenged by an adjacent property owner. Both the district court and the Minnesota Court of Appeals agreed with the city's decision. On June 24, 2010, the Minnesota Supreme Court reversed the Court of Appeals decision, and found the city's variance impermissible. In Krummenacher v. City of Minnetonka, the Supreme Court exam- ined the statutory definition of"undue hardship."The statutes that limit when a variance may be granted are found in Minnesota Statutes, section 462.357, sub- division 6, and list three tests that must be met for a variance to be appropriate due to an undue hardship. They are: ■ The property in question cannot be put to reasonable use if used under By CraigJohnson conditions allowed by the official controls. • The plight of the landowner is due to circumstances unique to the property not created by the landowner. • The variance, if granted, will not alter the essential character of the locality. In its decision, the court held that the "reasonable use" prong of the "undue hardship" test is not whether the proposed use of the property is reasonable, but whether any reason - In its decision, the court held that the "reasonable use" prong of the "undue hardship" test is not whether the proposed use of the property is reasonable, but whether any reasonable use of the prop- erty exists in the absence of a variance. able use of the property exists in the absence of a variance. This establishes a high threshold for both the city and the property owner when considering vari- ance requests. Furthermore, it means that in the vast majority of cases, cit- ies do not have the authority to grant a variance to local zoning regulations. The Supreme Court explicitly rec- ognized that it was changing a long- standing 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 prohib- ited by the ordinance." The Supreme Court stated that "unless and until the Legislature takes action to provide a more flexible vari- ance standard for municipalities, we are constrained by the language of the stat- ute 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." Counties in opposite position The Supreme Court also reviewed the parallel county authority that allows for a variance in situations of"practical dif- ficulties" or "hardship," which are found in Minnesota Statutes, section 394.27, subdivision 7. The court found that the city authority was more limited because it did not contain the "practical difficul- ties" provision found in that section. Counties, meanwhile, have been adapting to a change in how that same section of law functions for them after a 2008 Supreme Court opinion (Stads- vold v. County of Ottertail Board ofAdjust- ments). The court distinguished between "practical difficulties" and "particular hardships," the terms used in that sec- tion of law, and the types of variances to which each apply. The court applied the more easily met standard —practical difficulties —to area variances where a property owner is seeking to avoid a lot restriction set in ordinance, such as a setback, fenc- ing, height, density, or parking space. The court applied the more stringent 8 M I N N E S O T A CITIES J A N U A R Y- F E B R U A R Y 2011