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7d. Variance procedures CITYOF qrce... I 1 . . ‘ , , . . 4, CHANHASSEN . . .:, 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 I (612) 937-1900 • FAX (612) 937-5739 Action by City Administrator Endured ✓ b14-471/4- MEMORANDUM hlodiPie II __ RejaA TO: Don Ashworth, City Manager DatF�a..:.. 1- Date Submtted to Commss,on IFROM: Paul Krauss, Planning Director 6$2.-- Date Suh-'ftt d --____j ( DATE: February 20, 1990 -a(t,_ 90 I SUBJ: Proposed Amendments to Chapter 20, Article II, Administration and Enforcement of the Chanhassen City Code Pertaining to Variances 1 While working on various development proposals, two aspects of I the City' s variance procedure have come to staff' s attention as areas where modifications could prove to be useful. These two areas concern administrative procedures as to who is responsible for reviewing and approving variances while the second is related IIto the criteria that are used in reviewing variance proposals. According to the current ordinance, all variances are to be I reviewed by the Board of Adjustments and Appeals. In actual practice over the past few years, while many variances have been brought before the Board, a number of them have been approved directly by the City Council after consideration by the Planning ICommission. • The Board of Adjustments and Appeals serves an extremely useful I function in the community. However, the procedures whereby all variances are reviewed by the Board could potentially be con- fusing and time consuming and represent an avoidable problem in I the timely and effective review of development proposals. Many communities divide up the responsibilities for approval of variances. The Board of Adjustments and Appeals is generally responsible for those variances which are associated with I building single family homes or additions to those homes on single family lots. In many of these communities, it is the Planning Commission and ultimately the City Council that review I all other variances which may be attached to subdivisions, con- ditional use permits, site plans and in the near future interim use permits. In our opinion there are several valid reasons for I considering modifications to the variance procedures. A variance which, for example, is associated with a subdivision may be con- sidered by the Planning Commission and City Council to be valid based upon a number of considerations. These may include I I Mr. Don Ashworth February 20, 1990 Page 2 topographic features , surrounding development pattern, desire to avoid other more significant variances, public input, environmen- t tal preservation efforts or similar matters. While the Planning Commission and City Council are equipped to review the sub- division in its entirety, the Board of Adjustments and Appeals would typically be looking at that variance proposal in a manner ' that almost takes it out of context. This may result in the variances receiving consideration subject to criteria that may be different between the Planning Commission/City Council and the ' Board of Adjustments and Appeals. This factor could jeopardize a project and put a developer or landowner in a difficult position. The second related matter pertains to the mechanics of the proce- dure itself. When a developer or property owner works with staff ' to develop a proposal, there is a lot of effort, time and money that is expended before it is reviewed by the Planning Commission. A developer could easily be in a position whereby ' having to produce a submittal that is acceptable to the Planning Commission and City Council, their request for a related variance could be rejected by the Board of Adjustments, thus jeopardizing all of the work done to date. Based upon these considerations, staff is proposing an ordinance amendment that would give the City Council the ultimate authority ' to approve variances that stem from subdivisions, site plans and conditional or interim use permits. The ordinance was drafted by the City Attorney at our request. The Board of Adjustments and ' Appeals would continue to review all other variances. Note that the proposed procedures will in no way minimize the community' s ability to review and comment on the variance request since in ' either case it would be subject to public hearing. We believe that this revised procedure would facilitate effective and timely review of these matters. ' In another related matter, we have reviewed the City' s actions on variances in the past and find that there are occasionally instances where the Council would like to approve a variance, but that the existing five conditions for consideration of approval do not provide the necessary latitude to make this decision. Staff does not wish to indicate any desire to undermine the con- sistent interpretation of the ordinance, however, it is our belief that additional latitude could legally be provided in many of these instances. We believe that the revised interpretation of hardship could be adopted under existing State Enabling t legislation and is not contingent upon changes to the law that are currently being comtemplated. Consequently, staff asked the City Attorney to review the criteria and suggest language that ' would provide this latitude. He has developed six revised cri- teria that we believe accomplish this purpose. We note that the draft would provide that the interpretation of hardship is modified so that undue hardship means that the property could not t Mr. Don Ashworth February 20, 1990 Page 3 be put to a reasonable use because of its size, physical surroun- dings, shape or topography. Reasonable use is further defined as a use commonly made by other properties in the district. This provision would allow the City Council to legitimately review the surrounding neighborhood and grant such variances as may be necessary to allow development to occur in a manner that is con- sistent with the surroundings. The remaining conditions would ensure that variances are not a self-created hardship, that the variance is not based upon monetary concerns and that the variance would not be detrimental to other parcels in the area. Thus we believe that this additional latitude may be granted while continuing to maintain the City standards with regards to reviewing variances. To facilitate a comparison between the existing and proposed ' variance findings, these are reprinted below. Existing ' The Board of Adjustments and Appeals shall not recommend and the Council shall not grant, a variance unless they find the following facts : A. That the literal enforcement of the Ordinance would cause undue hardship and practical difficulty. B. That the hardship is caused by special conditions and cir- cumstances which are peculiar to the land and structure involved and which are not characteristic of or applicable to other lands of structures in the same district. C. That the granting of the variance is necessary for the pre- ' servation and enjoyment of substantial property rights . D. That the special conditions and circumstances are not a con- sequence of a self-created hardship. E. That the variance will not be injurious to or adversely affect the health, safety or welfare of the residents of the City of the neighborhood wherein the property is situated and will be in keeping with the spirit and intent of the Ordinance. Proposed A variance may be granted by the Board of Adjustments and Appeals or City Council only if all of the following criteria are met: A. That the literal enforcement of this Chapter would cause ' undue hardship. "Undue hardship" means the property cannot be put to reasonable use because of its size, physical Mr. Don Ashworth February 20, 1990 Page 4 surroundings, shape or topography. Reasonable use is a use ' commonly made by other property in the district. B. That the conditions upon which a petition for a variation is based are unique to the parcel of land for which the variance is sought and are not applicable, generally, to other prop- erty within the same zoning classification. ' C. That the purpose of the variation is not based exclusively upon a desire to increase the value or income potential of the parcel of land. D. That the alleged difficulty or hardship is caused by this ordinance and is not a self-created hardship. ' E. That the granting of the variation will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel of land is located. ' F. That the proposed variation will not impair an adequate supply of light and air to adjacent property or substantially increase the congestion of the public streets , or increases ' the danger of fire, or endanger the public safety or substan- tilly diminish or impair property values within the neigh- borhood. ' Staff Recommendation Staff is seeking the City Council ' s direction on this matter. We have prepared a draft of ordinance modifications that would result in the revised procedures outlined above. If the Council agrees with these proposals, we would submit them to the Planning ' Commission for hearing and review, and discuss them with the Board of Adjustments and Appeals. 11 CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 20 OF THE CHANHASSEN CITY CODE, THE ZONING ORDINANCE, CONCERNING VARIANCES THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS: Section 1. Section 20-28 (b) (2) of the Chanhassen City Code is amended to read: To hear requests for variances from the provisions of this Chapter which are not made in conjunction with platting, site plan review, conditional use or interim use permit applica- tion. Section 2. The caption of Section 20-29 of the Chanhassen City Code is amended to read: Section 20-29. Board of Adjustments Variance and Appeal Procedures. , Section 3. The Chanhassen City Code is amended by adding Section 20-30 to read: ' Section 20-30. Variance Requests in Conjunction with Platting, Site Plan Review, Conditional Use and Interim Use Permits. (a) Form; Fee. Appeals and applications for variances from the provisions of this Chapter made in conjunction with platting, site plan review, conditional use and interim use permits and variance from the subdivision ordinance shall be filed with the zoning administrator on prescribed forms. A fee, as established by the City Council, shall be paid upon the filing of an application. (b) Hearing. Upon the filing of such variance applica- tions the zoning administrator shall set a time and place for a hearing before the Planning Commission on the application, which hearing shall be held within thirty ( 30) days after the filing of the application. At the hearing the Planning Commission shall hear such persons as wish to be heard, either in person or by attorney or agent. Notice of such hearing shall be mailed not less than ten (10) days before the date of hearing to the person who filed the apaplication for variance, to each owner of property situated wholly or partially within five hundred ( 500) feet of the property to which the variance application relates. The names and addresses of such owners shall be determined by the zoning administrator from records provided by the applicant. II (c) Recommendation. Following the public hearing the Planning Commission shall recommend to the City Council that Ithe variance be granted or denied. (d) Council Action. By majority vote, the City Council I may approve or deny the variance request. In granting any variance the City Council may attach conditions to ensure compliance with this Chapter and to protect adjacent property. I (e) Action Without Decision. If no decision is transmitted by the Planning Commission to the City Council I within sixty ( 60) days from the date a variance request is filed with the zoning administrator, the Council make take action on the request, in accordance with the procedures governing the Planning Commission, without further awaiting Ithe Planning Commission's recommendation. I Section 4. Section 20-56 of the Chanhassen City Code is amended to read: ISection 20-56. Generally. A variance from this Chapter may be requested ony by the owner (or his approved representative) of the property repre- I sentative to which the variance would apply. A variance may not be granted which would allow the use of property in a manner not permitted within the applicable zoning district. I A variance may, however, be granted for the temporary use of a one-family dwelling as a two-family dwelling. In granting any variance conditions may be prescribed to ensure substan- tial tial compliance with this Chapter and to protect adjacent property. Section 5. Section 20-58 of the Chanhassen City Code is Iamended to read: Section 20-58. General Conditions for Granting. IA variance may be granted by the Board of Adjustments and Appeals or City Council only if all of the following criteria are met: I (a) That the literal enforcement of this Chapter would cause undue hardship. "Undue hardship" means the prop- I erty cannot be put to reasonable use because of its size, physical surroundings, shape or topography. Reasonable use is a use commonly made by other property in the district. I (b) That the conditions upon which a petition for a variation is based are unique to the parcel of land I for which the variance is sought and are not applicable, generally, to other property within the same zoning classification. I -2- I (c) That the purpose of the variation is not based exclusively upon a desire to increase the value or income potential of the parcel of land. (d) That the alleged difficulty or hardship is caused by this ordinance and is not a self-created hardship. ' (e) That the granting of the variation will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel of land is located. ( f) That the proposed variation will not impair an ade- ' quate supply of light and air to adjacent property or substantially increase the congestion of the public streets , or increases the danger of fire, or endanger the public safety or substantilly diminish or impair property values within the neighborhood. Section 6 . This ordinance shall be effective immediately ' upon its passage and publication. PASSED AND ADOPTED by the Chanhassen City Council this ' day of , 1990. ATTEST: Don Ashworth, City Manager Donald J. Chmiel, Mayor (Published in the Chanhassen Villager on , 1990. ) ' 1 1 -3-