Agenda - Council - 08/09/2011 - Laserfiche WebLink

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requirement —particular hardship — to use variance requests, which are requests to use the property in a way that is not otherwise allowed under adopted zoning regulations. The court reached this conclusion despite the fact that the statute specifically states that use variances are forbidden. The court went on to define a list of tests that would determine when a practical dif- ficulty exists. That ruling left counties in the exact opposite position of cities. In many cases, counties feel they have no option but to grant area variance requests, since "par- ticular hardship" is no longer allowed to be used as a test in those cases, and because of the broad description given of what constitutes "practical difficulty." Interim impacts Many cities have ordinances that are drafted to provide a solid baseline that protects public health, safety, and wel- fare while leaving room for appropri- ate exemptions that do not jeopardize those goals. They often allow for vari- ances in cases where the standard can- not be reasonably met, the problem was not caused by the actions of the prop- erty owner, and the exception will not change the nature of the neighborhood. The Krummenacher decision has left cities with the choice of hoping their variances aren't challenged, making sig- nificant and complicated changes to how they have drafted their ordinances, or simply refusing to consider grant- ing any variances until the Legislature resolves the issue.This means that a proj- ect that might have previously qualified for a variance cannot move forward in most communities right now City offi- cials are very concerned about what that could mean for badly needed economic and residential development projects. This ruling gets even more problem- atic when coupled with state land use regulations. Many of those rules, such as state shoreland regulations and metro- politan land use regulations, are written intentionally to use the variance pro- cedure to identify cases where a special case justifies a different solution within set parameters. In light of Krummenacher, the authority to grant variances in those cases is limited, which makes some of the standards unintentionally restrictive. Because of the far-reaching nature of the decision, there are at least four responses cities can consider to keep their regulatory systems functional until a legislative correction can be achieved: • Reevaluate the variance criteria. Cities are reevaluating the criteria they have historically used in decid- ing 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. • Make sure reasons for variances are clear. In circumstances where the city council believes a variance is appropriate, the city must take great care to make a detailed find- ing describing why the grant of the variance is necessary to provide the property owner with a reason - The Krummenacher decision has left cities with the choice of hoping their variances aren't challenged, making significant and complicated changes to how they have drafted their ordinances, or simply refusing to consider granting any variances until the Legislature resolves the issue. able use of his or her property. What constitutes a reasonable use of prop- erty is not defined and may differ depending on the unique circum- stances of the property and attributes of various communities. ■ Reexamine the zoning code. If a city routinely grants variances, this may be an indicator that it may want to reexamine its zoning code to ensure that standards, setbacks, uses, and other requirements are consistent with the city council's current vision for the community. Some cities are using this ruling as an opportunity to review their land use practices. ■ Build in flexibility. Cities can build greater flexibility into their exist- ing conditional use permit, planned unit development, and setback regu- lations to explicitly afford greater latitude to allow "variance -like" approvals under the zoning code. For instance, a city might establish alter- native setback requirements to allow for construction that is consistent with neighborhood attributes. Legislative solution As noted by the comments of Chief Justice Gildea in the Krummenacher opin- ion, legislative action will be needed to restore the flexibility for municipalities to grant variances. Ideally, local govern- ment variance authority language that is clear, consistent, and well-defined will come out of this legislative session. While the legislation is not expected to be controversial, the League of Minne- sota Cities has made this a priority issue to be resolved as quickly as possible in the 2011 legislative session. A quick reso- lution will help avoid confusion for city officials and the public, prevent needless changes to systems that functioned well, and avert costly litigation. The need for this legislation also provides an opportunity to redraft the county and city variance authority lan- guage found in their respective sections of law to make them consistent. The League's initial proposed legislative solution will likely make identical most of the language in Minnesota Statutes, section 462.357, subdivision 6 (2) and Minnesota Statutes, section 394.27, subdi- vision 7. This would eliminate confusion and the need for judicial cross-references about which wording, standards, and tests apply to cities and counties. During the legislative interim, the League has worked with cities, counties, municipal law experts, and other inter- ested parties to determine how to amend current statutes to clarify the issue for the courts. The goal is to do this without substantially changing the authority as it was understood prior to the Krummen- acher case. The proposed legislation will use the term "practical difficulties" as the test for area variances, and will define what that term means for the purposes of granting variances. To read the League's policy on this issue (SD-23), access the 2011 City Policies at wwwlmc.org/policies. Craig Johnson is intergovernmental relations representative with the League of Minnesota Cities. Phone: (651) 281-1259. E-mail: cjohnson@lmc.org. J A N U A R Y- F E B R U A R Y 2011 MINNESOTA CITIES 9