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HomeMy WebLinkAbout[07a-b] Caribou Coffee - Variance & CUPCouncil Agenda Item 7a-b MEETING DATE:August 5, 2019 AGENDA ITEM:Caribou Coffee –Variance and Conditional Use Permit Requests SUBMITTED BY:Community Development BOARD/COMMISSION/COMMITTEE RECOMMENDATION:The Planning Commission (4-2) is recommending approval of the variance. The Planning Commission (3-3) is recommending denial of the conditional use permit. PREVIOUS COUNCIL ACTION: The City Council approved a Purchase Agreement with the applicant. BACKGROUND INFORMATION:Jon Fahning and Tom Opatz LLC, applicant and developer are proposing the development of a Caribou Coffee on the property owned by the City of St. Joseph located on the th Ave SE), east of Scherer Trucking. The City owned parcel is a southeast corner of CSAH 75 and CR 133(12 th .64 acre +/-lot that was acquired as a result of right of way needed to the west for 12Ave. SE several years ago. The applicant is requesting approval of a variance to the buffer setback requirement adjacent to residential use properties. The City requires a minimum buffer setback of 15 feet from the property line where adjacent to residential. The applicant is proposing to be six feet from the southerly boundary property line, therefore, requesting a variance of nine feet. Secondly, the applicant isrequesting approval of a conditional use permit to allow for a drive-thru coffee shop. The property is guided for Corridor Commercial and zoned B-2 Highway 75 Business District and a coffee shop is a permitted use. A drive-thru is a permitted conditional use. A variance may be granted if enforcement of a zoning ordinance provision on a particular property would cause the landowner practical difficulties as defined by MN State Statute 462.357. The applicant must satisfy the statutory three-factor test for practical difficulties. The practical difficulties factors and applicant responses are included in their attached application. Public Testimony: Cynthia Ringling, 1308 Minnesota St. E, St. Joseph MN could not attend the public hearing but called prior and shared concerns with traffic and access and is opposed to the project. Several residents spoke at the public hearing voicing concerns with access, traffic, noise, lighting, and privacy. ATTACHMENTS:Request for Council Action Resolution 2019-051 Approving Variance Resolution 2019-052 Approving Conditional Use Permit Engineering Memos City Ordinance 502.07, Subd. : Conditional Use Permit c) Findings Venna Tschida Email League of MN Cities Info. Memos on Variances & Conditional Uses Variance and Conditional Use Permit Applications Alta Survey and Site, Landscaping and Building Elevation Plan REQUESTED COUNCIL ACTION:Authorize the Mayor and Interim City Administrator to execute Resolutions 2019-051 and 2019-052. RESOLUTION2019-051 A RESOLUTION ADOPTING FINDINGS OF FACT AND APPROVING AVARIANCE TOTHE MINIMUM BUFFER SETBACKREQUIREMENT IN ABUSINESS DISTRICT. WHEREAS,Jon Fahning and Tom Opatz LLC, developer and applicant,haveproperly applied for avarianceto the minimum buffer setbackrequirementestablished in St. Joseph Ordinance 502 for the propertylegally described as follows: Lot 1, Block 1 of SRM, according to the recorded plat thereof, Stearns County, Minnesota. “Subject Property” WHEREAS, the St. Joseph Planning Commission held a public hearing on the variance request on July 29, 2019, at which time all persons wishing to be heard regarding the matter were given an opportunity to be heard; and NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ST. JOSEPH, MINNESOTA, hereby adopts the following Findings of Fact supporting a variance to the minimum buffer setbackrequirement: 1.That the matter was duly published and notice was provided to property owners within 350 feet of the Subject Property. 2.That the Subject Property is zoned B-2 Highway 75 Business District and within the Transportation Overlay District. 3.That City Ordinance 502 requires a business development where it abuts a residential district or use to have a protectivestrip of not less than 15 feet in width established as a buffer zone. 4.That John Fahning and Tom Opatz LLC, hereinafter referred to as “Applicant,” properly applied for a variance from the minimum buffer setback requirement for a drive lane/aisle access along the southerly boundary of the Subject Property where it abuts residential use. 5.That the variance is consistent with the St. Joseph Comprehensive Plan. 6.That the variance is in harmony with the general purpose and intent of the Ordinance. 7.That theApplicant has established that there are practical difficulties in complying with the zoning ordinance. 8.That the variance is reasonable given the lot size and configuration, topography, and overhead utility lines located on the northerly boundary of the Subject Property, therefore, limiting the buildable area. 9.That the property is unique given the lot size and configuration, topography, access location requirement, and existing overhead utility lines limiting the buildable area. 10.That the variance will not alter the essential character of the neighborhood given the variance is for the drive lane access and year-round screening with conifer trees and shrubs will planted along the southerly boundary of the property where it abuts residential use properties. BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ST. JOSEPH, MINNESOTA, as follows: 1.Based on Findings of Fact, a variance of nine (9) feet to the minimum buffer setback requirement on the Subject Property is hereby granted along the southerly property boundary. 2.That an eight (8) foot high maintenance free privacy fence be installed along the southerly and easterly property boundary with coniferous trees planted along the inside of the fence to provide year-round screening. 3.Any shrubs and/or trees that die shall be replaced within the current or next growing season. Whereupon said resolution was declared duly passed and adopted by the St. Joseph City Council this 5th day of August, 2019. CITY OF ST. JOSEPH By Rick Schultz, Mayor By Therese Haffner,Interim City Administrator RESOLUTION2019-052 A RESOLUTION ADOPTING FINDINGS OF FACT AND APPROVING A CONDITIONAL USE PERMIT FOR THE PURPOSES OF HAVING A DRIVE THRU COFFEE SHOP. WHEREAS,Jon Fahning and Tom OpatzLLC,applicant and developer haveproperly applied for a conditional use permit for a drive thru coffee shopon the property legally described as follows: Lot 1, Block 1 of SRM, according to the recorded plat thereof, Stearns County, Minnesota. “Subject Property” WHEREAS, the St. Joseph Planning Commission held a public hearing on the conditional use permit on July 29, 2019, at which time all persons wishing to be heard regarding the matter were givenan opportunity to be heard; and WHEREAS,onJuly 29, 2019,the St. Joseph PlanningCommission reviewed the proposed conditional use permit andrecommended denialof the request for a conditional use permit to the City Councilbased on following Findings of Fact: 1.That the conditional use will involve activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property, or general welfare because of excessive production of traffic, noise, smoke, fumes, glare or odors. 2.That adequate utilities and services, including utilities, streets, drainage and other necessary facilities have not been provided and will not create excessive additional costs for services and/or be detrimental to the economic welfare of the community. NOW THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ST. JOSEPH, MINNESOTA, hereby makesthe following Findings of Fact: 3.That Jon Fahning and Tom Opatz LLC, hereinafter referred to as “Applicant,” properly applied for a conditional use permit to allow for a drive-thru coffee shop. 4.That the Applicant appeared before the St. Joseph Planning Commissionfor a public hearing pursuant to City Code on July 29, 2019and that said public hearing was properly advertised, and the minutes are hereby incorporated as part of these findings by reference. 5.That the land use plan for the Subject Property is Corridor Commercial and the proposed use is in compliance with the land use plan of the Comprehensive Plan of the City. 6.That the Subject Property is zoned B-2,Highway 75Business District and a drive-thru coffee shopis a permitted Conditional Use. 7.That the menu board is approximately 50 feet at it closest point from the southerly boundary of the property where it abuts the residential; therefore, the conditional use will not be detrimental to or endanger public health, safety, morals, comfort, or general welfare of the neighborhood and will be harmonious to the to the objectives of the Comprehensive Plan of the City. 8.That the conditional use will not involve activities, processes, materials, equipment and conditions of operation that willbe detrimental to any persons, property, or general welfare because of excessive production of traffic, noise, smoke, fumes, glare or odors. 9.That coniferous trees will be planted along the southerly boundary where it abuts residential; therefore, the conditional use will be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with character of the area and is not hazardous or disturbing to existing or future neighboring uses. 10.That adequate utilities and services, including utilities, streets, drainage and other necessary facilities have been provided and will not create excessive additional costs for services and/or be detrimental to the economic welfare of the community. th 11.That the Subject Property is locatedon the southeast corner of CSAH 75 and CR 133 (12Ave. SE). Stearns Country is the road authority and has reviewed and approved the proposed access point at CR 133. 12.That the proposed parking lot will provide sufficient off-street parking, stacking and loading space to serve the proposed use. 13.That the conditional use will not result in the loss or damage of natural, scenic or historic feature and the soil conditions are adequate to accommodate the use. BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ST. JOSEPH, MINNESOTA, as follows: 1.Based on the aforementioned Findings of Fact, a conditional use permit (“Permit”) to allow for a drive-thru coffee shop on the Subject Property is hereby granted. 2.That site plan approval be obtained prior to application and issuance of a building permit. 3.That the Applicant is responsible for meeting all Federal, State, Local, and City requirements and obtaining any and all permits and licenses. 4.That an eight (8) foot high maintenance fence shall be placed along the southerly and easterly boundary and coniferous trees shall planted along the inside of the fence and be a minimum of eight (8) feet high at full maturity to provide sufficient screening. 5.That the menu board and speaker shall be located no closer than 50 feet at its closest point to the southerly property line and the menu speaker shall be directed/angled toward CSAH 75 and therefore, away from the southerly boundary. 6.Any shrubs and/or trees that die shall be replaced within the current or next growing season. 7.That all lighting shall deflect away from adjacent properties, be down directed, full-cut off or hooded and not exceed .4 lumens at the property lines. Decorative lighting is permitted. 8.Revocation: The City Council shall revoke a conditional use permit when it determines that the terms and conditions of the permit as issued are no longer being complied with. A certified copy of an order of the City revoking a conditional use permit shall be filed with the County Recorder for recording. 9.Expiration: If within one (1) year after issuance of granting a conditional use permit the use permitted has not started, then the permit is null and void, unless the City Council has approved a petition for an extension. The conditional use permit shall expire if the authorized use ceases for any reason for more than one (1) year. 10.The City Administrator and/or his/her designee shall have the right to inspect the premises for compliance and safety purposes annually or at any time upon reasonable request. Whereupon said resolution was declared duly passed and adopted by the St. Joseph City Council this 5th day of August, 2019. CITY OF ST. JOSEPH By Rick Schultz, Mayor By Therese Haffner, Interim City Administrator MEMORANDUM TO: Therese Haffner, Community Development Director FROM: Randy Sabart, PE City Engineer DATE: July 23, 2019 RE: Caribou Coffee, St. Joseph, Minnesota Site Plan Review SEH No. STJOE GEN G185 14.00 I reviewed the Civil plans dated July 5, 2019, from Bogart, Pederson & Associates, Inc. and have the following comments: Site, Utility, Grading, Drainage, Erosion Control, and Detail Plans 1. Sheet C-1 indicates the incorrect building service pipe sizes. See attached record drawing. 2. Sheet C-2 indicates incorrectly that removal of potential personal property encroachments on the lot are subject to enforcement by the City. The City would typically not enforce such encroachments, and it would be a matter for the property owners to resolve. 3. The developer shall submit the site plan to the Stearns County Highway Department for review and th Ave (CR133) and determination of any required acceptance. Issuance of an access permit to 12 improvements to CR 133 will be made by Highway Department staff. 4. Pedestrian ramp construction within the public right of way shall reference MnDOT standard plan 5- 297.250. 5. Verify applicability of the side yard setback distance to the proposed trash enclosure (6 ft vs. 10 ft). 6. The proposed business sign is located in the public drainage and utility easement and must be relocated. Verify setback requirements and CSAH 75 Transportation Corridor Overlay requirements. 7. The Planning Commission should define any screening requirements for adjacent residentially zoned property to the south. 8. It appears from the submittal that no overhead light is provided at the entrance at CR 133. Considering the location and traffic near the entrance, consideration should be given for requiring an overhead light. 9. See the attached memo for hydrology/hydraulic review comments. 10. City Standard construction detail plates shall be referenced for municipal utility construction and improvements within the public rights of way. 11. The submittal did not include a project manual or specifications. Please submit for site Civil utility work. 12. See attached drawing mark-ups/comments rjs/mrb Engineers | Architects | Planners | Scientists Short Elliott Hendrickson Inc., 1200 25th Avenue South, P.O. Box 1717, St. Cloud, MN 56302-1717 SEH is 100% employee-owned | sehinc.com | 320.229.4300 | 800.572.0617 | 888.908.8166 fax 2019 Caribou Coffee July 23, 2019 Page 2 c: Judy Weyrens, City of St. Joseph Terry Thene, City of St. Joseph \\\\sehsc\\projects\\pt\\s\\stjoe\\common\\general numbers\\g185 2019 caribou cabin dev\\1-genl\\14-corr\\m city site plan review 072319.docx MEMORANDUM TO: Randy Sabart, PE FROM: Nathan Warner, PE (Lic. MN) DATE: July 19, 2019 RE: Caribou Coffee, St. Joseph – Bogart, Pederson & Assoc SEH No. 113189 14.00 I have reviewed the Caribou Coffee Drive Thru submittal dated 7/8/19 for the proposed construction activities located on County Road No. 133 and County State Aid Highway No. 75 in St. Joseph. The following comment pertain only to the drainage and erosion control design: 1. HydroCAD Model: a. Update drainage areas to include off-site drainage to site. Provide drainage area figure. b. Due to the site configuration, adjust the model to calculate separate runoff for each CN instead of using a composite CN. c. Update distribution to MSE-3 2. BMP Design: a. Pre-treatment measures must be designed and installed upstream of the infiltration BMP. Pre-treatment should be designed based on the Minnesota Stormwater Design Manual. A description of the pretreatment should be included in the stormwater management plan and shown in the plans. b. The infiltration rates must be verified by field-testing at the BMP location prior to construction for design purposes and after construction is complete for verification of design values. A safety factor of 2:1 must be applied to the field tested infiltration rates for design. Field test results shall be provided to the City upon request. At the City’s discretion, the Minnesota Stormwater Manual design infiltration rates may be used in lieu of field testing for design, verification field-testing will still be required after construction is complete. c. Permanent stormwater facilities shall provide adequate maintenance access. A 20-foot wide access lane from a nearby street and a 20-foot wide access shelf around the permanent stormwater facility shall be provided. The access lane and access shelf shall have a 20:1 or flatter cross slope. 3. Grading and Drainage Notes should include specific requirements to protect the infiltration basin during construction, including but not limited to: Engineers | Architects | Planners | Scientists Short Elliott Hendrickson Inc., 3535 Vadnais Center Drive, St. Paul, MN 55110-5196 SEH is 100% employee-owned | sehinc.com | 651.490.2000 | 800.325.2055 | 888.908.8166 fax Caribou Coffee Page 2 a. Infiltration basin shall not be excavated to final grade, or within 3 feet of final grade, and runoff and sediment should be kept completely away from the areas until the contributing drainage area has been constructed and fully stabilized with dense and healthy vegetation. b. Once excavated within three feet of final grade, the infiltration basin shall be staked off during construction to prevent equipment or other vehicles from compacting the soils. c. Only low impact track equipment should be used within the infiltration area. d. The in-situ soils located below infiltration areas should be scarified to a minimum depth of 12- inches. 4. Prior to project approval, an operation and maintenance agreement meeting the standards of section 10.0 of City of St. Joseph Stormwater Management Design Standards must be signed by the City and BMP owner. NJW ORDINANCE 502–ZONING ORDINANCE c)Findings.The City Council must make the following findings when granting a Conditional Use Permit: 1.Will not be detrimental to or endanger the public health, safety, morals, comfort, convenience or general welfare of the neighborhood or the City. 2.Will be harmonious with the general and applicable specific objectives of the comprehensive plan of the City and this Ordinance. 3.Will be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and will not change the essential character of that area. 4.Will not be hazardous or disturbing to existing of future neighboring uses. 5.Will be served adequately by essential public facilities and services, including utilities, streets, police and fire protection, drainage structures, refusedisposal, water and sewer systems, schools, and other necessary facilities. 6.Will not create excessive additional requirements at public cost for public facilities and services and will not be detrimental to the economic welfare of the community. 7.Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property, or the general welfare because of excessive production of traffic, noise, smoke, fumes, glare or odors. 8.Will have vehicular approaches to the property which are so designed as not to create traffic congestion or an interference with traffic or surrounding public thoroughfares. 9.Will have adequate facilities to provide sufficient off-street parking and loading space to serve the proposed use. 10.Will not result in the destruction, loss or damage of a natural, scenic, or historic feature of major importance. 11.That soil conditions are adequate to accommodate the proposed use. d)Denial for Non-Compliance. If the Planning Commission recommends denial of aConditional Use Permitor the Council orders such denial, it shall include in its recommendations or determination findings as to the ways in which the proposed use does not comply with the findings required by this Ordinance. 502.07-3 From:Venna Tschida To:Therese Haffner Subject:Caribou Coffe Date:Monday, July 29, 2019 4:28:18 PM Good afternoon, Ms. Haffner. I am writing this message to you as a resident of the Cloverdale neighborhood to express some concerns I have about the proposal of a Caribou Coffee on the corner of 12th Ave SE and County Road 75. I am unable to make it to the meeting for the discussion on this topic. First, this is already a high-traffic intersection that is still under construction. I understand this will be completed soon, but I feel that with another business at that intersection traffic flow will be impeded, particularly around peak commute times and when trucks are going in and out of Scherer and Sons. Second, there are a lot of neighborhood residents who walk and bike around this area, both in the neighborhood and to and from the Lake Wobegon Trail, especially children. A busy coffee shop on this corner would put the safety of our residents at risk and also take away from the "small town" atmosphere my neighborhood provides. Finally, this seems like an inopportune location for this business, given that there is a Caribou Coffee located inside the Coborn's right across the street. A business that close to our residents' homes may also impact property values, thus impacting their decisions to move in or out of our community. Thank you for your time, -- Venna Trettel vrtschida@gmail.com 320.260.7693 Total Control PanelLogin To:Message Score: 40High (60): Pass thaffner@cityofstjoseph.com My Spam Blocking Level: MediumMedium (75): Pass From: vrtschida@gmail.com Low (90): Pass Block this sender Block gmail.com This message was delivered because the content filter score did not exceed your filter level. INFORMATIONMEMO Land Use Conditional Use Permits Learn the basics of conditional use permits (CUPs) in administering the city’s land use ordinances. Define conditional use permits, for what purposes they may be granted; learn who grants them and procedural considerations for public hearings and the role of neighborhood opinion. Understand expiration dates, time limits and revocation of CUPs. I. Conditional use RELEVANT LINKS: A conditional use is a land use designated in a zoning ordinance that is specifically allowed in a zoning district so long as certain standards are met. The zoning ordinance typically detail both general standards that apply to all conditional uses, as well as specific standards that apply to a particular conditional use in a given zoning district. A use is typically designated in a zoning ordinance as conditional because of hazards inherent in the use itself or because of special problems that its proposed location may present. For example, uses that generate traffic such as family childcare, service stations, convenience stores, or drive- thrus are often designated as conditional uses. II.Conditional use permit (CUP) A conditional use permit is a document a city issues to grant a conditional use when the general and specific ordinance standards have been met by the applicant. The use is allowed by permit only if the special concerns are addressed as set forth in the zoning ordinance. Conditional use permits are Minn. Stat. § 462.3595. authorized under state law. A. General CUP standards A zoning ordinance will typically detail general standards that apply to all conditional uses. For example, some zoning ordinances provide that all conditional uses must conform to the comprehensive land use plan of the community, be compatible with the adjoining properties, and be served by adequate roads and public utilities. This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. 145 University Ave. West www.lmc.org 1/11/2019 Saint Paul, MN 55103-2044 (651) 281-1200 or (800) 925-1122 © 2019 All Rights Reserved RELEVANT LINKS: B. Specific CUP standards In addition to general CUP standards, many zoning ordinances will detail specific standards that apply to a particular conditionaluse, such as those made for businesses operating a drive-thru. Conditions for such uses may include specific standards regarding things like off-street parking and loading areas, landscaping and site plan, and hours of business operation. III. Granting conditional use permits Generally, CUPs are granted only for uses specifically listed in the zoning ordinance as conditional uses in a particular zoning district. If a use is not designated as a conditional use in a zoning district, then arguably the city hasno ability to issue a CUP without first amending the zoning ordinance to provide for the conditional use. This would of course allow other applicants to apply for a conditional use permit under the same standards. A. Who grants See Section IV, Public A CUP is typically approved by the city council. Planning commissions hearings. often first consider the CUP application and make recommendations to the city council. State statute allows the city council to designate its CUP approval to another authority, and some cities have designated the planning commission as the approving body. In any event, the city council is generally makes the final decision on CUPs. B. Required approval If a proposed conditional use satisfies both the general and specific standards set forth in the zoning ordinance, the applicant is entitled to the conditional use permit. Importantly, if the applicant meets the general and specific ordinance standards, the city usually has no legal basis for denying the CUP. C. Time limits Minn. Stat. § 15.99. A written request for a CUP 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 considered an approval. League of Minnesota Cities Information Memo: 1/11/2019 Land Use Conditional Use Permits Page 2 RELEVANT LINKS: D. Other conditions on permits 1. Permitted Reasonable conditions relating to the ordinance standards may be attached to a CUP based upon factual evidence contained in public record. For example, if a zoning ordinance provides that a conditional use should not have adverse visual or noise impacts on any adjacent property, a city might require specific screening and landscaping conditions to address any potential impacts established in the record. 2. Not permitted Minn. Stat. § 462.3595, subd. State statute provides that a CUP remains in effect as long as the 3. conditions agreed upon are observed. The attorney general has found that A.G. Op. 59-A-32 (February 27, 1990) . time limits such as sunset provisions or automatic annual review are not consistent with state law, explaining that cities may not enact or enforce provisions that allow a city to terminate CUPs without regard to whether or not the conditions agreed upon are observed. If a city wishes to place time constraints on particular uses, then the appropriate zoning tool is an interim use permit, rather than a conditional use permit. State law authorizes interim use permits for a temporary use of Minn. Stat. § 462.3597. property until a particular date, until the occurrence of a particular event, or until zoning regulations no longer permit it. IV.Public hearings Minn. Stat. § 462.3595, subd. A proposed conditional use is allowed only after a statutorily required 2. public hearing. The city must provide published notice of the time, place, Minn. Stat. § 462.357, subd. 3. and purpose of the hearing on a proposed CUP at least 10 days prior to the day of the hearing. If the decision affects an area of five acres or less, the LMC information memo, Zoning Guide for Cities, city may need to mail notice to property owners within a 350-foot radius Section IV-C-2-b on of the land in question. The purpose of the public hearing is to help conducting public hearings. develop a factual record as to whether the applicant meets the relevant ordinance standards such that the CUP should be granted. League of Minnesota Cities Information Memo: 1/11/2019 Land Use Conditional Use Permits Page 3 RELEVANT LINKS: A. City role in hearing A city exercises so-called “quasi-judicial” authority when considering a CUP application. This means that the city’s role is limited to applying the standards in the ordinance to the facts presented by the application. The city acts like a judge in evaluating the facts against the standards. If the applicant meets the standards, then the CUP should be granted. In contrast, when the city in zoning ordinance designates certain uses as conditional, the city is exercising “legislative” authority and has much broader discretion. B. Role of neighborhood opinion Neighborhood opinion alone is not a valid basis for granting or denying a CUP. While city officials may feel their decision should reflect the overall preferences of residents, their task is limited to evaluating how the CUP application meets the ordinance standards. Residents can often provide important facts to help the city address whether the application meets the standards, but unsubstantiated opinions and reactions to an application do not form a legitimate basis for a CUP decision. If neighborhood opinion serves as the sole basis of the decision, it could be overturned by a court if challenged. C. Documentation of hearing See LMC information memo, Whatever the decision, a city should create a record that will support it. If Taking the Mystery out of a city denies a CUP application, the 60-day rule requires the reasons for Findings of Fact. the denial be put in writing. Even if a city approves a CUP, a written statement explaining the decision is advisable. The written statement explaining the decision should address the general and specific ordinance standards, and explain the relevant facts and conclusions. V. Conditional use permit after issuance Minn. Stat. § 462.3595, subd. A conditional use permit is a property right that “runs with the land” so it 3. attaches to and benefits the land and is not limited to a particular landowner. State statute requires that CUPs be recorded with the county Minn. Stat. § 462.3595, subd. recorder’s office. When the property is sold, the new landownerwill have 4. the continued right to the CUP so long as the conditions are met. A city can revoke a conditional use permit if there is not substantial compliance with conditions, so long as the revocation is based upon factual evidence, after appropriate notice and hearing. Because a CUP is a property right, a city should work closely with the city attorney if considering a CUP revocation. League of Minnesota Cities Information Memo: 1/11/2019 Land Use Conditional Use Permits Page 4 RELEVANT LINKS: VI.Further assistance Jed Burkett LMCIT offers land use consultations, training and information to 651.281.1247 members. Contact the League’s Loss Control Land Use Attorney for jburkett@lmc.org assistance. You can also learn more about land use issues in the land use League of Minnesota Cities. section of the League’s website. League of Minnesota Cities Information Memo: 1/11/2019 Land Use Conditional Use Permits Page 5 INFORMATIONMEMO Land Use Variances Learn about variances as a way cities may allow an exception to part of their zoning ordinance. Review who may grant a variance and how to follow and document the required legal standard of “practical difficulties” (before 2011 called “undue hardship”). Links to a model ordinance and forms for use with this law. I. What is a variance RELEVANT LINKS: 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. 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 Minn. Stat. § 462.357, subd. by variance any use that is not permitted under the ordinance for the zoning 6. district where the property is located. II. Granting a variance Minn. Stat. § 462.357, subd. Minnesota law provides that requests for variances are heard by a body 6. 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. Minn. Stat. § 462.357, subd. A variance may be granted if enforcement of a zoning ordinance provision 6. 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. This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. 145 University Ave. West www.lmc.org 1/11/2019 Saint Paul, MN 55103-2044 (651) 281-1200 or (800) 925-1122 © 2019 All Rights Reserved RELEVANT LINKS: III.Legal standards When considering a variance application, a city exercises so-called “quasi- judicial” authority. This means that the city’s role is limited to applying the legal standard of practical difficulties 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 may be granted. In contrast, when the city writes the rules in zoning ordinance, the city is exercising “legislative” authority and has much broader discretion. A. Practical difficulties “Practical difficulties” is a legal standard set forth in law that cities must apply when considering applications for variances. It is a three-factor test and applies to all requests for variances. To constitute practical difficulties, all three factors of the test must be satisfied. 1. Reasonableness The first factor is that the property 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. 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. 2. Uniqueness 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. League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 2 RELEVANT LINKS: 3. Essential character 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. B. Undue hardship 2011 Minn. Laws, ch. 19, “Undue hardship” was the name of the three-factor test prior to a May 2011 amending Minn. Stat. § change of law. After a long and contentious session working to restore city 462.357, subd. 6. 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 the new law. It 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. Krummenacher v. City of The 2011 law restores municipal variance authority in response to a Minnetonka, 783 N.W.2d 721 Minnesota Supreme Court case, Krummenacher v. City of Minnetonka. It (Minn. June 24, 2010). also provides consistent statutory language between city land use planning Minn. Stat. § 462.357, subd. statutes and county variance authority, and clarifies that conditions may be 6. Minn. Stat. § 394.27, subd. 7. imposed on granting of variances if those conditions are directly related to, and bear a rough proportionality to, the impact created by the variance. See Section I, What is a variance. 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 2011 law renamed the municipal variance standard from “undue hardship” to “practical difficulties,” but otherwise retained 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 See Section IV-A, Harmony with other land use controls. already in the county statutes. League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 3 RELEVANT LINKS: C. City ordinances 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 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. Issuance of Variances, LMC The models linked at the left reflect the 2011 variance legislation. While Model Ordinance. they may contain provisions that could serve as models in drafting your own Variance Application, LMC documents, your city attorney would need to review prior to council action Model Form. to tailor to your city’s needs. Your city may have different ordinance Adopting Findings of Fact, LMC Model Resolution. requirements that need to be accommodated. IV. Other considerations A. Harmony with other land use controls Minn. Stat. § 462.357, subd. The 2011 law also provides that: “Variances shall only be permitted when 6. 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 See LMC information memo, plan.” This is in addition to the three-factor practical difficulties test. So a Taking the Mystery out of Findings of Fact. city evaluating a variance application should make findings as to: 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? B. Economic factors Minn. Stat. § 462.357, subd. Sometimes landowners insist that they deserve a variance because they have 6. 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 practical difficulties. Rather, practical difficulties exist only when the three statutory factors are met. League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 4 RELEVANT LINKS: C. 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 statutory practical difficulties 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. D. Conditions Minn. Stat. § 462.357, subd. A city may impose a condition when it grants a variance so long as the 6. condition is directly related and bears a rough proportionality to the impact created by the variance. For instance, if a variance is granted to exceed an otherwise applicable height limit, any conditions attached should presumably relate to mitigating the effect of excess height. V.Variance procedural issues A. Public hearings 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 practical difficulties factors. B. Past practices While past practice may be instructive, it cannot replace the need for analysis of all three of the practical difficulties 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. League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 5 RELEVANT LINKS: C. Time limit Minn. Stat. § 15.99. 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. D. Documentation 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 Minn. Stat. § 15.99, subd. 2. denial be put in writing. Even when the variance is approved, the city should See LMC information memo, consider a written statement explaining the decision. The written statement Taking the Mystery out of Findings of Fact. should explain the variance decision, address each of the three practical difficulties factors and list the relevant facts and conclusions as to each factor. If a variance is denied, the 60-day rule requires a written statement of the reasons for denial be provided to the applicant within the statutory time Minn. Stat. § 15.99, subd. 2. 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. VI. Variances 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. VII. Further assistance Jed Burkett If you have questions about how your city should approach variances under LMCIT Land Use Attorney this statute, you should discuss it with your city attorney. You may also jburkett@lmc.org 651.281.1247 contact League staff. League of Minnesota Cities Information Memo: 1/11/2019 Land Use Variances Page 6 3900 Lakebreeze Ave N Brooklyn Center, MN 55429 DATE ISSUEDDRAWN BYCHECKED BYJOB NO.PROJECT LOCATION: Caribou Coffee Company ST. JOSPEH, MN 20' LEGEND: SCALE: 1" = SITE NOTES