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Fire Code Variance Gordon Heitke Page 1 of 1 s St ova Li— LY -O From: Smith, Chris [CSmith @Imc.org] Sent: Monday, April 28, 2008 2:13 PM To: Gordon Heitke Cc: Chamberlin, Tracie Subject: Fire Code Variance Gordon: This e -mail is to follow -up on our recent discussion regarding a bar owner who has requested a variance from the state fire code. Although the procedure in Minnesota Statutes, Section 299F.011 is not entirely clear, I interpret Subdivision 5 to set up the following process: Step 1. Property owner requests a variance from the local fire official (presumably the fire chief). Step 2. If the request is denied, the property owner may appeal to the city council (assuming there is no local board of appeals). Step 3. If the city council denies the variance request, the property owner may appeal to the state fire marshal. Subdivision 5 provides that the state fire marshal may grant a variance from the fire code if: 1. There is "substantial compliance" with the fire code. 2. The "safety of the public and occupants of such building will not be jeopardized" and 3. "Undue hardship will result to the applicant unless such variance is granted." Presumably, these are the same standards that the local fire official and city council should consider. The first two factors are an area where the city needs to rely on the expertise of the local fire official. The "undue hardship" is more difficult to apply as the statute does not tell us what constitutes an "undue hardship." I also checked the Minnesota annotated statutes and there are no court cases that have addressed to issue of "undue hardship" as it applies to the fire code. My suggestion is to look at the granting of variances in land use matters which also applies an "undue hardship" requirement. Minnesota Statutes, Section 462.357, subd. 6, provides in part as follows: "Undue hardship" as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the terms of the ordinance." Under the facts you described, the bar owner may be able to meet factors 1 and 2 in Minnesota Statutes, Section 299F.01, subd. 5. However, applying the "undue hardship" standard above, I do not think the bar owner can show an "undue hardship" although ultimately that decision is up to the local fire official and the city council to decide. If you have any questions or need additional information, please let me know. Christopher Smith I Risk Management Attorney Tel: (651) 281 -1269 I Fax: (651) 281 -1296 csmith @Imc.org 1 www.lmc.orq League of Minnesota Cities 145 University Ave. West 1 St. Paul, MN 55103 Connecting & Innovating since 1913 4/28/2008