HomeMy WebLinkAboutLMC New Variance RulesNew Variance Rules
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).
It allows the landowner to break a
dimensional zoning rule that would
otherwise apply.
A variance may be granted if strict
enforcement of the zoning ordinance as
applied to a particular piece of property
would cause the landowner "practical
difficulties." For the variance to be
granted, the applicant must satisfy the
statutory three -factor test for practical
difficulties. If the applicant does not meet
all three factors of the statutory test,
then a variance should not be granted.
Also, variances are only 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. State regulations
regarding city variances are found in
Minnesota Statutes, section 462.357.
Undue hardship. Prior to May 2011,
when granting a variance, the familiar
standard to be applied was "undue
hardship." This law has now been
rewritten (see 2011 Minnesota Laws,
Chapter 19, amending Minnesota Statutes,
section 462.357, subdivision 6) to
restore municipal variance authority in
response to last June's Minnesota
Supreme Court ruling in the case
Krummenacher v. City of Minnetonka.
"Practical difficulties" is now the
applicable standard. City ordinance
may need to be written to address these
state law changes. Official findings of
fact, when granting or denying a
variance, should specifically address the
new standards.
Three factors of "practical difficulties.
The first factor is that the property
By Jed Burkett
owner proposes to use the property in
a reasonable manner. 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.
This 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 land-
owner's problem is due to circumstances
unique to the property; it is not caused
by the landowner. The uniqueness
generally relates to the physical charac-
teristics 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 on a setback, the
focus of this factor is whether there is
anything physically unique about the
particular piece of property, such as
sloping topography, wetlands, trees, or
other natural features.
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,
consider how the particular building
will look closer to a lot line and if that
fits in with the character of the area.
Other factors to consider. State
statute provides 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. So, in addition
to the three -factor practical difficulties
test, a city evaluating a variance
application should make findings as
t01) whether or not the variance is in
harmony with the purposes and intent
of the ordinance, and (2) whether or
not the variance is consistent with the
comprehensive plan.
Timeframe for variance decisions.
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.
Documenting variance decisions.
A city should create a record that will
support its variance decisions. 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 craft a written statement
explaining the decision. The written
statement should explain the variance
decision, address each of the three
practical difficulties factors, and list
the relevant facts and conclusions as
to each factor.
The League of Minnesota Cities
Insurance Trust has prepared a memo
and sample ordinance on this new law,
available at www.Imc.org/media/
document/ 1 /2011variance
legislation.pdf.
Jed Burkett is loss control land use attorney
with the League of Minnesota Cities
Insurance Trust. Phone: (651) 281-1247.
E-mail:jburkett@lmc.org.
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