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C+1 tb Lae JO CS( . Sess(ov) MEMORANDUM TO: Lino Lakes City Council FROM: Joe Langel, City Attorney DATE: August 10, 2010 RE: Variance Standard — Krummenacher v. City of Minnetonka On June 24, 2010, the Minnesota Supreme Court issued a decision that redefines or clarifies the standard to be used when cities review applications for variances. The decision changes a longstanding interpretation of the law by the Court of Appeals and effectively makes it more difficult for a property owner to successfully argue in favor of a variance. It is anticipated that this decision will result in fewer variances being granted. To understand the application of the decision, it is useful to review the facts of the case. A property owner, Liebeler, owns a detached garage that was built in the 1940s. The garage is considered to be a nonconforming structure because it does not meet the current setback requirements. Nevertheless, it is deemed a permissible structure because it existed long before the setback requirements came into effect. The garage has a flat roof that purportedly leaks. Liebeler wants to replace it with a pitched roof, which would not only cure the leaks but also provide a usable living space above the garage. The proposed roof would meet existing height requirements. The rest of the garage would not be enlarged, so the only expansion is upward. Because expansion of a nonconforming structure is not allowed without a variance, Liebeler applied for a variance. Liebeler's neighbor, Krummenacher, objected to the proposed variance (the new roof would block his view). The City Planning Commission approved the variance, finding that there was an undue hardship given the nature of the site (there is no where else the garage can go). Krummenacher appealed to the City Council, which upheld the approval. Krummenacher then brought suit in District Court, which upheld the variance. The Court of Appeals likewise affirmed the variance. Relying on a decision it issued in 1989, the Court of Appeals held that proving undue hardship simply means that the property owner can show that he or she would like to use the property in a reasonable manner. Expanding the garage upward is reasonable, as it does not violate any other City ordinance. It is not as if Liebeler is trying to reduce the setbacks even further or somehow make the structure even more nonconforming than it already is. The