City Variance Authority Article from Minnesota Cities Magazine20 1 1 LEGISLATIVE ISSUES
M 11
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.
By Craig Johnson
n 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 Kmmmenacher 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 ofAppeals.
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 ofAppeals
agreed with the city's decision. On
June 24, 2010, the Minnesota Supreme
Court reversed the Court ofAppeals
decision, and found the city's variance
impermissible.
In Krummenacher v. City of Minnetonka,
the Supreme Court examined the stat-
utory definition of "undue hardship.'
The statutes that limit when a variance
may be granted are found in Minnesota
Statutes, section 462.357, subdivision 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
conditions allowed by the official
controls.
■ The plight of the landowner is due tc
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 property
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 ofAppeals interpretation
of the phrase "undue hardship," which
allowed for the grant of a variance in
MINNESOTA CITIES
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
Irea variances where a property owner
.s seeking to avoid a lot restriction set
n ordinance, such as a setback, fenc-
ng, height, density, or parking space.
the court applied the more stringent
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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 riling 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 inflexibility. 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 into 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 www.hnc.org /policies.
Craig Johnson is intergovernmental relations
representative with the League of Minnesota
Cities. Phone: (651) 2 -1259. E -mail:
cfohnson@Imc.org.
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