Staff ReportsI MEETING TYPE
City of Shorewood Council Meeting Item Regular Meeting
Title/Subject: Zoning Code Amendment -Variances
Meeting Date: 14 November 2011
Prepared by: Brad Nielsen
Reviewed by: Patti Helgesen
Attachments: Planning Director's Memorandum, dated 14 September 2011
Policy Consideration:
Background: Due to changes this year in the state statutes governing the granting of variances, the
Planning Commission held a public hearing on 20 September, and continued to 4 October 2011 to
consider revisions to Shorewood's Zoning Code that will make it consistent with the statutes. The
attached staff report, dated 14 September, illustrates the changes initially recommended by staff (in red
type) and the subsequent revisions by the Planning Commission (in blue type). It should be noted that a
suggestion was made that the term "practical difficulties" be capitalized when used in the Code. Since
this technique has not been used elsewhere in the Code, it was changed back to lower case.
Financial or Budget Considerations:
Options: Adopt the proposed amendment, revise the proposed amendment or leave the Code as
currently written.
Recommendation / Action Requested: Staff recommends adoption of the Code amendment as drafted.
Next Steps and Timelines:
Connection to Vision / Mission: Quality public service.
Mission Statement., The City of Shorewood is committed to providing residents quality public services, a
healthy environment a variety of attractive amenities, a sustainable tax base, and sound financial
management through effective, efficient, and visionary leadership. Page 1
CITY OF SHOREWOOD
ORDINANCE NO.
AN ORDINANCE AMENDING THE SHOREWOOD ZONING CODE AS IT PERTAINS
TO THE GRANTING OF VARIANCES
Section 1. City Code Section 1201.02 is hereby amended as follows:
The definition of "HARDSHIP" is deleted in its entirety.
The following definition is added:
"PRACTICAL DIFFICULTIES. In connection with the request for a variance from
compliance with the requirements of this Code, where a property owner proposes to use the
subject property in a reasonable manner not permitted by the Code in which the plight of the
property owner giving rise to the variance request is due to circumstances unique to the
property not created by the property owner or a previous property owner and the variance, if
granted, is in harmony with the general purposes and intent of the Zoning Code, is consistent
with the Comprehensive Plan and will not alter the essential character of the locality.
Practical difficulties include but are not limited to inadequate access to direct sunlight for
solar energy systems. Economic considerations alone do not constitute practical difficulties."
The definition of "VARIANCE" is amended to read:
"VARIANCE. A relaxation of the requirements of this Code where a property owner
proposes to use the subject property in a reasonable manner not permitted by the Code, such
deviation will be in harmony with the general purposes and intent of the Code, consistent
with the Comprehensive Plan, and will not alter the essential character of the locality and
where, owing to physical conditions unique to the individual property under consideration
and not the result of the actions of the property owner or previous property owner,
compliance with the Code would result in practical difficulties as defined herein."
Section 2. City Code Section 1201.05 Subd. l .b. is amended to read:
"b. Variances from the literal provisions of this chapter in instances where their strict
enforcement would cause practical difficulties because of circumstances unique to
the individual property under consideration and to grant the variances only when
it is demonstrated that the actions will be in keeping with the spirit and intent of
this chapter."
Section 3. City Code Section 1201.05 Subd. 2.b.(3) is hereby amended to read:
"(3) The special conditions and circumstances are not the result of actions by the
property owner or previous property owner."
Section 4. City Code Subd. 31(2) is hereby amended to read:
"(2) The Council may impose any condition it considers necessary to protect the
public health, safety and welfare, provided such conditions are directly related to
and bear a rough proportionality to the impact of the variance."
Section 5. That this Ordinance shall be in full force and effect upon publishing in the
Official Newspaper of the City of Shorewood.
ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this 14th day of
November 2011.
CHRISTINE LIZEE, MAYOR
ATTEST:
BRIAN HECK, CITY ADMINISTRATOR/CLERK
-2-
W.
CITY OF
--� SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 960-7900
FAX (952) 474-0128 • www.ci.shorewood.mmus • cityhall®ci.shorewood.mmus
MEMORANDUM
TO: Planning Commission, Mayor and City Council
FROM: Brad Nielsen
DATE: 14 September 2011
RE: Zoning Code Text Amendment — Variances (Rev 1
FILE NO. Zoning Code (Chapter 1201.05)
At the last Planning Commission meeting, staff provided background on recent changes to
state statutes relative to the granting of variances. Following are revisions staff had
determined necessary to bring Shorewood's Zoning Code in line with the statutes:
(Additions are shown in red type, deletions are shown with strikeouts)
Section 1201.02 (Definitions)
Delete — definition of "HARDSHIF' in its entirety.
Add — following definition:
"PRACTICAL DIFFICULTIES. A situatien in In connection with the request for a
variance from compliance with the requirements of this Code, where a property owner
proposes to use the subject property in a reasonable manner not permitted by the Code in
which the plight of the property owner giving rise to the variance request is due to
circumstances unique to the property not created by the property owner or a previous
propery o\cner and the variance, if granted, is in harmony with the general purposes and
intent of the Zoning Code, is consistent with the Comprehensive Plan and will not alter
the essential character of the locality. Practical difficulties include but are not limited to
inadequate access to direct sunlight for solar energy systems. Economic considerations
alone do not constitute practical difficulties."
Replace — definition of:
014 PRINTED ON RECYCLED PAPER
Memorandum
Re: Zoning Text Amendment — Variances
14 September 2011
with:
"VARIANCE. A relaxation of the requirements of this Code where a property owner
proposes to use the subject property in a reasonable manner not permitted by the Code,
such deviation will be in harmony with the general purposes and intent of the Code,
consistent with the Comprehensive Plan, and will not alter the essential character of the
locality and where, owing to physical conditions unique to the individual property under
consideration and not the result of the actions of the property owner or pre% ious property
mk ner. compliance with the Code would result in Practical Difficulties as defined herein."
Section 1201.05 (Administration, Variances and Appeals)
Subd. Lb. is amended to read:
"b. Variances from the literal provisions of this chapter in instances where their strict
enforcement would cause ands practical Difficulties because of
circumstances unique to the individual property under consideration and to grant
the variances only when it is demonstrated that the actions will be in keeping with
the spirit and intent of this chapter."
Subd. 2.b.(3) is hereby amended to read:
"(3) The special conditions and circumstances de are not the result €retry the of actions
ofthe applieaat by the property owner or pre\ ious propert\ Ox\ner."
Subd. 3.f.(2) is hereby amended to read:
"(2) The Council may impose any condition it considers necessary to protect the public
health, safety and welfare, provided such conditions are directly related to and
bear a rough proportionality to the impact of the variance."
A public hearing has been scheduled for 20 September to consider the proposed amendments.
Cc: Brian Heck
Tim Keane
-2-
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 960-7900
FAX (952) 474.0128 • www.ci.shorewood.mn.us • cityhall®ci.shorewood.mmus
MEMORANDUM
TO: Planning Commission
FROM:
Brad Nielsen
DATE:
11 August 2011
RE:
Zoning Code - Variances
FILE NO.
City Code (1201.05)
For the past several years Planning Commission work programs have included one
annual study session relative to the subject of variances. Historically, this seems to be
the zoning tool that has been the least understood by residents and city officials alike.
This year our discussion will include some mandatory amendments to the Zoning
Code that are necessary to make it consistent with recent State legislation.
In May of this year, the governor signed a bill enacting a new standard for the
consideration of variance requests. The legislation is in response to the Minnesota
State Supreme Court's decision last year in Krummenacher v City of Minnetonka, a
decision that reinforced a rigorous standard for variance review based on "undue
hardship" and whether or not the variance was necessary to allow a "reasonable use"
of the property.
The new statute replaces these tetras with "practical difficulties" and an analysis of
whether the proposal is to use property in a "reasonable manner". To review
variances, the City's analysis is to be based on the following considerations:
• The property owner proposes to use the property in a reasonable manner.
• The ordinance prohibits this manner of use.
• The proposed manner of use is consistent with the intent of the Zoning Code
and with the Comprehensive Plan.
• The ordinance creates "practical difficulties" in achieving the manner of use.
• The difficulties are unique to the property and not created by the owner.
III The variance will not alter the essential character of the "locality".
co PRINTED ON RECYCLED PAPER
Memorandum
Re: Zoning Code — Variances
11 August 2011
Under the previous statutory language, the applicant was required to show that
without the variance, there was essentially no reasonable use of the property available.
This new standard gives the City some discretion to decide that the proposal is
reasonable, even though some minimum legal use would be possible without the
variance.
The League of Minnesota Cities has prepared a list of Frequently Asked Question
relative to variances and the new law change (see Exhibit A, attached). It actually
provides some good background for a discussion on variances.
Shorewood's zoning requirements for variances are attached as Exhibit B, starting
with definitions of variance and hardship. These will have to be amended slightly to
comply with the new standard. Beyond that, modifications to Section 1201.05 will be
relatively minimal.
Shorewood has historically been relatively conservative with respect to the granting of
variances, adhering to statutory requirements. This is rightfully so — remember,
variances are exceptions to the law and should be granted sparingly. So, while we
need to make some revisions to the Code, the effects are relatively negligible. Staff
will have some case studies to talk about at the meeting.
Cc: Mayor and City Council
Brian Heck
Tim Keane
6Z
o®
L,EAGU E of CONNECTING & INNOVATING
MINNESOTA SINCE 1913
CITIES
VARIANCES
Frequently Asked Questions
(Reflects 2011 law change)
What is a variance?
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.
Who grants a variance?
Minnesota law provides that requests for variances are heard by a body 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.
For more information, see Minn. Stat. & 462.357.
When can a variance be granted?
A variance may be granted if enforcement of a zoning ordinance provision 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.
For more information, see Minn. Stat. & 462.357.
What kind of authority is the city exercising?
A city exercises so-called "quasi-judicial" authority when considering a variance application. 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.
What is practical difficulties?
Practical difficulties is a legal standard set forth in law that cities must apply the 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. For more information,
see Minn. Stat. & 462.357.
This material Is provided as general Information and Is not a substitute for legal advice.
consult your attorney for advice concerning specific situations.
LEAGUE OF MINNESOTA CITIES 145 UNIVERSITY AVE, WEST PHOh Exhibit
INSURANCE TRUST ST. PAUL, MN 55103-2044 Tou Phi
What are the practical difficulties factors?
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.
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.
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.
Are there are other factors a city should consider?
Yes. 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 to (1) 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.
What about economic considerations?
Sometimes landowners insist that they deserve a variance because they have 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 exists only when the three statutory factors are met.
What about undue hardship?
"Undue hardship" was the name of the three -factor test prior to a May 2011 change of law.
Effective May 6, 2011 Minnesota Laws, Chapter 19, amended Minn. Stat. § 462.357, subd. 6 to
restore municipal variance authority in response to Krummenacher v. City of Minnetonka, 783
N.W.2d 721 (Minn. June 24, 2010). In Krummenacher, the Minnesota Supreme Court interpreted
the statutory definition of "undue hardship" and held that the "reasonable use" prong of the "undue
hardship" test was not whether the proposed use is reasonable, but rather whether there is a
reasonable use in the absence of the variance.
What did the 2011 law change?
The 2011 law changed the first 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. The 2011 law also provides that: "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."
Can a city grant a use variance?
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 by variance any use
that is not permitted under the ordinance for the zoning district where the property is located. For
more information, see Minn. Stat. S 462.357.
Is a public hearing required?
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.
What is the role of 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.
What is the role of past practice?
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.
When should a variance decision be made?
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. For more information, see Minn. Stat. S 15.99.
How should a city document a variance decision?
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 denial be put in writing. Even when the
variance is approved, the city should consider 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.
Can meeting minutes adequately document a variance decision?
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 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.
Can a city attach conditions to a variance?
By law, a city may impose a condition when it grants a variance so long as the 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 affect of excess height. For
more information, see Minn. Stat. 5 462.357.
What happens to the variance 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.
Jed Burkett 2011/06
GREENHOUSE. An enclosed building, constructed at least 75% of glass or similar other
transparent or translucent, rigid material, which is used to maintain suitable conditions under
which plants may be grown.
GUEST ROOM. A room occupied by one or more guests for compensation and in which no
provision is made for cooking.
EnHARDSHIP. A situation where property in question cannot be put to reasonable use under the
conditions allowed by official controls, and the plight of the landowner is due to circumstances
unique to his or her property, not created by the landowner. Economic considerations alone shall
ot constitute a hardship.
HOME OCCUPATION. Any occupation or profession engaged in by the occupants of the
dwelling or accessory building when conducted within the dwelling or accessory building or
when conducted upon a parcel of land containing the dwelling unit.
IMPERVIOUS SURFACE. An artificial or natural surface through which water, air or roots
cannot penetrate.
INTENSIVE VEGETATION CLEARING. The complete removal of trees or shrubs in a
continguous patch, strip, row or block.
INTERIM CONDITIONAL USE. A temporary use of property until a particular date, until the
occurrence of a particular event or until the use is no longer allowed by zoning regulations.
INTERIM CONDITIONAL USE PERMIT. A permit issued by the City Council in accordance
with procedures specified in § 1201.04 of this code.
INTERMITTENT. A stream or portion of a stream that flows only in direct response to
precipitation.
JUNK YARD. Land or buildings where waste, discarded or salvaged materials are bought, sold,
exchanged, stored, cleaned, packed, disassembled or handled, including, but not limited to, scrap
metal, rags, paper, hides, rubber products, glass products, lumber products and products
resulting from the wrecking of automobiles or other vehicles.
1201-10
USE. The purpose or activity for which the land or building thereon is designated, arranged or
intended, or for which it is occupied, utilized or maintained, and shall include the performance
of the activity as defined by the performance standards of this chapter.
Ei
ARIANCE. The waiving by official action of the literal provisions of the zoning ordinance in
stances where their strict enforcement would cause undue hardship because of physical
rcumstances unique to the individual property under consideration.
VEGETATION. The sum total of plant life in some area;
distinguishable characteristics.
2011 S-6 1201-21 Exhibit B
1201.05 Shorewood - Zoning and Subdivision Regulations
1201.05 ADMINISTRATION, VARIANCES AND APPEALS.
Subd. 1. Purpose. The purpose of this section is to provide for:
1201.05
a. An appeal process where it is alleged that there is an error in any order,
requirement, decision or determination by an administrative officer in the
enforcement of this chapter; and
b. Variances from the literal provisions of this chapter in instances where their strict
enforcement would cause undue hardship because of circumstances unique to the
individual property under consideration and to grant the variances only when it
is demonstrated that the actions will be in keeping with the spirit and intent of this
chapter.
Subd. 2. Conditions governing consideration of variance requests.
a. In considering all requests for a variance and in taking subsequent action, the city
staff, the Planning Commission and the City Council serving as the Board of
Adjustments and Appeals shall make a finding of fact that the proposed action will
not:
(1) Impair an adequate supply of light and air to adjacent property;
(2) Unreasonably increase the congestion in the public street;
(3) Increase the danger of fire or endanger the public safety;
(4) Unreasonably diminish or impair established property values within the
neighborhood or in any other way be contrary to the intent of this chapter;
(5) Violate the intent and purpose of the City Comprehensive Plan.
b. A variance from the terms of this chapter shall not be granted unless it can be
demonstrated that:
(1) Special conditions and circumstances exist which are peculiar to the land,
structure or building involved and which are not applicable to other lands,
structures or buildings in the same district:
(a) Special conditions may include exceptional topographic or water
conditions or, in the case of an existing lot or parcel of record,
narrowness, shallowness or shape of the property;
(b) Special conditions and circumstances may not be primarily
economic in nature;
1201-94
1201.05 Zoning Regulations 1201.05
(2) Literal interpretation of the provisions of this chapter would deprive the
applicant of rights commonly enjoyed by properties in the same district
under the terms of this chapter;
(3) The special conditions and circumstances do not result from the actions of
the applicant;
(4) Granting the variance requested will not confer on the applicant any
special privilege that is denied by this chapter to other lands, structures or
buildings in the same district.
C. Application for a variance shall set forth reasons that the variance is justified in
order to make reasonable use of the land, structure or building and that the
variance is the minimum variance necessary.
Subd. 3. Procedure.
a. Application. Appeals or requests for variances, as provided within this chapter,
shall be filed with the Zoning Administrator on an official application form. The
application shall be accompanied by a fee as provided for by City Council
resolution. This fee shall not be refunded. The application shall also be
accompanied by five copies of detailed written and graphic materials fully
explaining the proposed change, development or use and a mailing list of property
owners located within 500 feet of the subject property obtained from and certified
by Hennepin County.
b. Staff review/technical assistance reports. Upon receipt of an application for appeal
or variance, the Zoning Administrator shall, when deemed necessary, refer the
request to appropriate staff to insure that informational requirements are complied
with. When all informational requirements have been complied with, the request
shall be considered officially submitted. Also, when deemed necessary, the
Zoning Administrator shall instruct the appropriate staff persons to prepare
technical reports and/or provide general assistance in preparing a recommendation
on the request to the Planning Commission and City Council.
C. Public hearing. Upon official submission of the request, the Zoning Administrator
shall set a public hearing on the request for the next regularly scheduled Planning
Commission meeting occurring at least ten days from the date as a notice of the
hearing is published in the official newspaper. The notice shall contain a legal
property description and description of the request and shall be published no more
than 30 days and no less than ten days prior to the hearing. Written notification
of the hearing shall also be mailed at least ten days prior to the date of the hearing
to all owners of land within 500 feet of the boundary of the property in question.
Failure of a property owner to receive the notice shall not invalidate any
proceedings as set forth within this chapter.
1201-95
1201.05 Shorewood - Zoning and Subdivision Regulations 1201.05
d. Planning Commission action. The Planning Commission shall conduct the public
hearing, at which time the applicant or a representative thereof shall appear to
answer questions concerning the proposed request.
(1) The Planning Commission shall consider possible adverse effects of the
appeal or variance. In the case of a variance request, the Planning
Commission's judgment shall be based upon (but not limited to) the
conditions set forth in subdivision d(2) of this section.
(2) The Planning Commission and city staff shall have the authority to request
any additional information from the applicant deemed necessary to
establish performance conditions pertaining to the request.
(3) The Planning Commission shall make a finding of fact and recommend the
actions or conditions relating to the request as they deem necessary to
carry out the intent and purpose of this chapter. The recommendation shall
be in writing and accompanied by any report and recommendation of the
city staff. The written recommendation of the Planning Commission shall
be forwarded to the Zoning Administrator for referral to the City Council.
e. Referral to City Council. Upon receipt of the Planning Commission report and
recommendation, the Zoning Administrator shall place the request and any report
or recommendation on the agenda of the next regularly scheduled meeting of the
City Council.
f. City Council action. Upon receiving the request and any report or
recommendation of the Planning Commission and the city staff, the City Council
shall have the option to set and hold a public hearing if deemed necessary and
shall make a recorded finding of fact.
(1) Approval of a request shall require passage by a simple majority vote of
the full City Council.
(2) The Council may impose any condition it considers necessary to protect
the public health, safety and welfare.
(3) Whenever an application for a variance has been considered and denied by
the City Council, a similar application for the variance affecting
substantially the same property shall not be considered again by the
Planning Commission or City Council for at least six months from the date
of its denial; and a subsequent application affecting substantially the same
property shall likewise not be considered again by the Planning
Commission or City Council for an additional six months from the date of
the second denial, unless a decision to reconsider the matter is made by
not less than a simple majority vote of the full City Council.
1201-96
1201.05 Zoning Regulations 1201.05
(4) The City Council serving as the Board of Adjustment and Appeals shall,
after receiving the written report and recommendation of the Planning
Commission and the city staff, make a finding of fact and make a decision
on appeals where it is alleged by the appellant that error has occurred in
any order, requirement, decision or determination made by the Zoning
Administrator in the enforcement of this chapter. However, the appeal
shall be filed not later than 90 days after the applicant has received a
written notice from the Zoning Administrator or the appeal shall be
considered void.
Subd. 4. Lapse of variance or appeal. Whenever within one year after granting a variance or
appeal, the use as permitted by the variance or appeal shall not have been completed or
utilized, then the variance or appeal shall become null and void unless a petition for
extension of time in which to complete or to utilize the use has been granted by the City
Council. The extension shall be requested in writing and filed with the Zoning
Administrator at least 30 days before the expiration of the original variance or appeal.
There shall be no charge for the filing of the petition. The request for extension shall state
facts showing a good faith attempt to complete or utilize the use permitted in the variance
or appeal. The petition shall be presented to the Planning Commission for a
recommendation to the City Council for a decision.
Subd. 5. Per bond. In the cases as a variance or appeal is approved contingent upon
certain conditions imposed by the Council, the Council may require a performance bond
to be provided.
a. Upon approval of a variance or appeal, the city shall be provided with a surety
bond, case escrow, certificate of deposit, securities or cash deposit prior to the
issuing of building permits or initiation of work on the proposed improvements
or development. The security shall be noncancellable and shall guarantee
conformance and compliance with the conditions of the variance or appeal and the
ordinances of the city.
b. The security shall be in the amount of one and one-half times the City Engineer's
or Building Official's estimated costs of labor and materials for the proposed
improvements or development.
C. The city shall hold the security until completion of the proposed improvements or
development and a certificate of occupancy indicating compliance with the
variance or appeal and ordinances of the city has been issued by the City Building
Official.
d. Failure to comply with the conditions of the variance or appeal and the ordinances
of the city shall result in forfeiture of the security for action necessary on the part
of the city to correct problems or deficiencies.
1201-97
1201.05 Shorewood - Zoning and Subdivision Regulations 1201.07
Subd. 6. Property survey. In those cases where a stipulated requirement of this chapter has been
modified through the granting of a variance or appeal, a property survey prepared by a
registered land surveyor shall be submitted, outlining lot dimensions, setbacks and
buildings. The survey shall be a condition of the variance or appeal and shall be submitted
prior to the initiation of any improvement on the property in question.
(1987 Code, § 1201.05) (Am. Ord. 383, passed 3-25-2002)
1201.06 ADMINISTRATION, PLANNED UNIT DEVELOPMENT.
Subd. 1. Purpose. This section is intended to allow flexibility within zoning districts while
maintaining land use compatibility with surrounding neighborhoods.
Subd. 2. Application. Within the zoning districts contained in §§ 1201.10 through 1201.23,
planned unit development is allowed by conditional use permit. Land use and densities
are limited to land uses and densities specified in each of the individual districts.
Subd. 3. Special procedures. The establishment of a PUD by conditional use permit shall be
subject to the procedures and requirements for conditional use permits as set forth in
§ 1201.04 of this chapter and the standards and criteria set forth in § 1201.25 of this
chapter. Each of the three stages of the review process shall require a separate
application.
(1987 Code,§ 1201.06) (Ord. 208, passed 4-11-1988)
1201.07 ADMINISTRATION, CERTIFICATE OF OCCUPANCY
Subd. 1. No building or structure hereafter erected or moved, or that portion of an existing
structure or building erected or moved, shall be occupied or used in whole or in part for
any purpose whatsoever until a certificate of occupancy shall have been issued by the
Building Official stating that the building or structure complies with all of the provisions
within this chapter.
Subd. 2. The certificate shall be applied for coincidentally with the application for a building
permit, conditional use permit and/or variance and shall be issued within ten days after
the Building Official shall have found the building or structure satisfactory and given final
inspection. The application shall be accompanied by a fee as established by City Council
resolution
(1987 Code, § 1201.07)
1201-98
CITY OF
SHOREWOOD
5755 COUNTRY CLUB ROAD • SHOREWOOD, MINNESOTA 55331-8927 • (952) 960-7900
FAX (952) 474-0128 • www.ci.shorewood.mmus • cityhaiI@ci.shorewocd.mn.us
MEMORANDUM
TO: Mayor and City Council
FROM: Brad Nielsen
DATE: 10 September 2010
RE: Zoning — Recent Supreme Court Decision - Variances
FILE NO. 405 (Chapter 1201.05)
At the last Planning Commission meeting, someone inquired about a recent Supreme
Court decision relative to variances. A summary of the case, Krummenacher v. City
of Minnetonka is attached for your review.
In reviewing this matter with the City Attorney, we both agree that this has little effect
on Shorewood, simply because this is how we have considered variances in the past.
Nevertheless, this item has been scheduled for a brief discussion next Tuesday.
Cc: Mayor and City Council
Brian Heck
A
t •PRINTED ON RECYCLED PAPER
State Supreme Court Narrowly Interprets Variance Authority
Page 1 of 2
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State Supreme Court Narrowly
Interprets Variance Authority
The court ruling holds cities to a much stricter standard, which considerably limits variance
opportunities.
(Published Jul21, 2010)
The Minnesota Supreme Court recently issued a decision that changed the longstanding interpretation of
the statutory standard for granting zoning variances.
In the case of Krummenacher v. City of Minnetonka, the Supreme Court narrowly interpreted the
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 reasonable use in the absence of
the variance. This is a much stricter standard, which considerably limits variance opportunities.
The decision
The City of Minnetonka issued a variance to a residential property owner permitting the expansion of a
legal, non -conforming garage. The city, relying on a 1989 Court of Appeals decision, concluded that the
grant of the variance was reasonable. The city's decision was challenged by an adjacent property owner.
Both the District Court and the Minnesota Court of Appeals agreed that the city's decision was
appropriate. On June 24 the Minnesota Supreme Court reversed the Court of Appeals and found the
city's decision impermissible.
The Supreme Court examined the statutory definition of "undue hardship" in Minnesota Statutes,
section 462.357, and concluded that city authority to issue a variance is limited to those very rare cases
where the property cannot be put to "a reasonable use" without the variance. This establishes a high
threshold for both the city and the property owner when considering variance requests.
The Supreme Court reviewed the parallel county authority that allows for a variance in situations of
"practical difficulties" or "hardship." The Supreme Court found that the city authority was more limited
because it did not contain the "practical difficulties" provision. The court explicitly recognized that it
was changing a longstanding standard that cities have relied on in considering variance requests. In
particular, the court specifically rejected a 1989 Court of Appeals interpretation of the phrase "undue
hardship," which allowed for the grant of a variance in circumstances where the "property owner would
like to use the property in a reasonable manner that is prohibited by the ordinance."
The Supreme Court stated that "unless and until the Legislature takes action to provide a more flexible
variance standard for municipalities, we are constrained by the language of the statute 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."
Impact of the decision
Because of the far-reaching nature of the decision, there are probably at least four responses that cities
should think about —at least until a legislative correction can be achieved:
. The city should re-evaluate the criteria that it has historically used in deciding whether or not to grant
http://www.Imc.org/page/l/varianceruling.jsp 9/1/2010
State Supreme Court Narrowly Interprets Variance Authority
Page 2 of 2
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 grant.
In circumstances where the city council believes the grant of a variance is appropriate, the city should
take great care to make detailed finding describing why the grant of the variance is necessary to
provide the property owner with a reasonable use of his or her property. What constitutes a
reasonable use of property is not defined and may differ depending on the unique circumstances of
the property and attributes of various communities.
. If a city routinely grants variances, this may be an indicator that it may want to re-examine its zoning
code to ensure that standards, setbacks, uses, and other requirements are consistent with the city
council's current vision for the community. In short, the court's decision should act as an
encouragement to cities to review their land use practices.
. Cities may want to build greater flexibility into their existing conditional use permit, planned unit
development, and setback regulations to explicitly afford greater latitude to allow "variance -like"
approvals under the zoning code. For instance, a city might establish alternative setback requirements
to allow for construction that is consistent with neighborhood attributes.
Legislative action
The restrictive court decision has caused a number of League members to call for a legislative response.
The decision, its impact, and a possible legislative response will be discussed in the League's Improving
Service Delivery Policy Committee this summer. It is anticipated that the League will support a
legislative change to provide cities with greater flexibility —perhaps something similar to the county
authority.
Read the current issue of the Cities Bulletin
Your LMC Resource
Contact Tom Grundhoefer General Counsel
(651) 281-1266 or (800) 925-1122
tgrundho@Imc.org
Copyright 02010 League of Minnesota Cities, 145 University Ave. W, Saint Paul, MN 55103-2044 1 Phone: (651) 281-1200 1 Toll-Fme: (800) 925-1122
http://wwwJmc.org/page/l/varianceruling.jsp 9/1/2010