HomeMy WebLinkAboutPZ Packet 06-27-11The City of Lake Elmo
Planning Commission will conduct a meeting on
Monday, dune 27, 2011, at 7;00 p.m.
1. Pledge of Allegiance
2. Approve Agenda
3. Approve Minutes
a. None.
4. Public Hearing
a. ZONING TEXT AMENDMENT: Consideration of an ordinance to amend
Chapter 154.015 to 154.021 (Administration: Administrator, Duties of the
Zoning Administrator, Variances, Conditional Use Permits, Interim Use
Permits, Amendments and Fees) to bring information up to date.
5. Business Item
a. A Presentation /Training Session by the American Planning Association —
"Design Review for Officials"
6. Updates
a. City Council Updates
i. Bremer Bank PUD Amendment — Approved
ii. South of I oa' Street — Vision Statement and Goals
iii. Planning Commission Composition
b. Staff Updates
c. Commission Concerns
7. Adjourn
Planning Commission
Date: 6/27/11
Public Hearing
Item: 4a
ITEM: Review and Discussion
SUBMITTED BY: Kyle Klatt, Planning Director
REVIEWED BY: Kelli Matzek, City Planner
Nick Johnson, Planning Intern
SUMMARY AND ACTION REQUESTED:
The Planning Commission is asked to review and recommend approval of proposed changes to the
"Administrative" section of the Zoning Ordinance. The proposed update of this section of code will reflect
the recent changes the Minnesota State Legislature made to a City's statutory authority to grant
variances. The most significant change made to the State Statutes is the removal of the term "hardship"
from the variance sections and the replacement of this term with "practical difficulties ". The effect of this
change is to make the issuance of variances a more viable option to communities than if the hardship
language were left in place.
BACKGROUND:
In July of 2009, the Minnesota Supreme Court made a decision in the case of Krummenacher v. City of
Minnetonka that resulted in a much more strict interpretation of the State Statutes regarding variances
than cities had typically been using. As a result of this case, Cities across the State, including Lake Elmo,
were required to use a much more conservative approach to drafting findings related to variances.
Therefore, the ultimate affect of the court case, was to hold the issuance of variances to a much higher
threshold than previously, and greatly limited any flexibility from zoning regulations.
In order to address the lack of flexibility that existed in the wake of the court decision, the Minnesota State
Legislature has revised the section of State Statues pertaining to variances to allow some additional
flexibility for City's that wish to consider variances from zoning regulations. The primary language that
was changed is noted below:
HARDSHIP: "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 the 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.
[this language was removed and replaced with]
PRACTICAL DIFFICULTIES: "Practical difficulties" as used in connection with the granting of a
variance, means that the property owner proposes to use the property in a reasonable manner
not permitted by an official control; 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.
Staff is recommending that the Planning Commission consider changes to the City's Zoning Ordinance
that mirror the new Statutory provisions, and that will ultimately allow for greater flexibility in dealing with
requests for exceptions to the City's zoning regulations. Although the proposed ordinance would
eliminate the problematic language concerning "hardship ", the other criteria that were used for granting
variances would still need to be met, including: 1) that circumstances unique to the property in question
exist and were not created by the landowner and 2) the variance will not alter the essential character of
the locality.
Staff has attached the full text of the amendments to the State Statutes that were adopted by the State
legislature for consideration by the Planning Commission. The original text of the City ordinance is
included as part of the proposed ordinance (and shown as deleted text).
RECOMMENDATION:
Staff is recommending that the Planning Commission recommend approval of the amendments to the
variance provisions of the Zoning Ordinance as documented in the attached draft language.
ATTACHMENTS:
1. Proposed Ordinance Amendments
2. Revised MN State Statutes: Variances
3. League of MN Cities Handout: Variances Q and A
ORDER OF BUSINESS:
- Introduction ........................... ...............................
- Report by staff ....................... ...............................
- Questions from the Commission ..........................
- Open the Public Hearing ....... ...............................
- Close the Public Hearing ...... ...............................
- Call for a motion .................... ...............................
- Discussion of Commission on the motion............
- Action by the Planning Commission ....................
........................... Planning Director
....I— .................. Planning Director
.......Chair & Commission Members
.............. ............................... Chair
...... ............................... Chair
.... ..........................Chair Facilitates
... ..........................Chair Facilitates
.......Chair & Commission Members
PROPOSED ORDINANCE AMENDMENTS — VARIANCES
Lake Elmo Planning Department Draft 6/27/11
§11.01 Definitions.
§154.017 Variances.
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A. In General. The board of Adjustment shall have the power to grant variances to
the provisions of this chapter under the following procedures and standards
A request for a variance from the literal provisions of this chapter may be
granted in instances where their strict enforcement would cause practical
difficulties because of circumstances unique to the individual property
under consideration and then onlv when it is demonstrated that such
actions will be in keeping with the spirit and intent of this chapter. All
requests for variances shall be reviewed in accordance with the required
findings listed in Section 154.017, Subd E.
B. Use Variances Prohibited. A variance shall not be granted for any use that is not
a listed permitted or conditional use under this chapter for property in the zone
where the property is located.
C. Application Requirements. An application for a variance shall be submitted to the
Zoning Administrator and accompanied by such information as follows:
1. Name and address of the ap licant:
2. The legal description of the propertv involved in the request for variance
including the street address if any of the property:
The name and address of the owners of the property and any other person
that has a legal interest in the property. The applicant shall supply rp oof
of ownership of the property for which the variance is requested
consisting of an abstract of title or registered property certificate certified
by a licensed abstractor, together with any unrecorded documents whereby
the petitioners acquired legal or equitable ownership
4. A site plan drawn to scale or a certified survey if required by the City
showing:
a. Property dimensions:
b. Locations of all existing and proposed buildings and their
size, including square footage:
C. Existing and proposed septic systems:
d. Curb cuts driveways access roads parking spaces off -
street loading areas, and sidewalks: and
e. Other infonnation as deemed necessary for the request.
5. The variance requested and the reasons for the request. and
6. The application form shall be accompanied by an accurate list showing the
names and the mailing address of the record owners of all property within
a minimum of 350 feet of the Property for which the variance is sought
verified as to accuracy by the applicant.
D. Review Requirements. The Planning Commission shall hold a public hearing on
each complete application for a variance with the following procedure:
2. The Zoning Administrator shad notify the applicant and the applicable
property owner(s) of the time and place of the hearing The notice shall be
served on the person by mail. provided the notices shall be mailed at least
10 days preceding the date of the bearing
3. The Planning Commission shall make written findings for all variance
applications and shall state in the findings the reasons for its
recommendations to the Board of Adjustment.
4. The Planning Commission may recommend to the Board of Adjustment
conditions if iranting of a variance which may be reasonably determined
to be necessary to protect adjacent properties preserve the public health
safety, and welfare, and comply with the intent and purposes of this
chapter. The Planning Commission may also recommend conditions and
requirements deemed necessary to ensure compliance with the terms of the
variance.
5. Board ofAdiustmentAction. The Board of Adjustment shall receive the
recommendation of the Planning_ Commission and shall take final action
on the variance request.
E. Required Findings. Any action taken by the Board of Adjustment to approve or
deny a variance request shall include the following findings:
Practical Difficulties A variance to the provision of this cha te�y be
granted by the Board of Adjustment upon the application by the owner of
the affected property where the strict enforcement of this chapter would
cause practical difficulties because of circumstances unique to the
individual rp operty under consideration and then only when it is
demonstrated that such actions will be in keeping with the spirit and intent
of this chapter.
a. Definition of practical difficulties "Practical difficulties," as
used in connection with the granting of a variance means that
the property owner proposes to use the property in a reasonable
manner not permitted by an official control.
2. Unique Circumstances The problem for the landowner /applicant which
the proposed variance is intended to correct must be due to circumstances
that are unique to the property in question and was not created by the land
owner/applicant.
3. Character oflocality. The proposed variance will not alter the essential
character of the locality in which the property in question is located
4. Ad'aprroperties and traffic The proposed variance will not impair an
adequate supply of light and air to property adjacent to the property in
question or substantially increase the congestion of the public streets or
substantially diminish or impair property values within the neighborhood
F. Conditions. The Board of Adjustment may impose such restrictions and
conditions upon the property that is the subject of the valiance as maybe
necessary to comply with the standards established by this chapter or to reduce or
minimize the effect of such variance upon other properties in the neighborhood
and to better carry out the intent of the variance
G. Effect of denial. No application by a property owner for a variance shall be
submitted to the Board of Adjustment within a six (6) month period following a
denial of such a request unless in the opinion of the Board new evidence of
change in circumstances warrant it.
H. Expiration. A variance shall be deemed to authorize only one particular use and
shall expire if work does not commence within twelve (12) months of the date of
granting such variance or if that use ceases for more than six consecutive months
1. Revocation. The Board of Adjustment may revoke a variance if any conditions
established by the Board as part of granting the variance request are violated
16101111
REVISOR JMR /RC I1 -0607
This Document can be made available
in alternative formats upon request State of Minnesota
HOUSE OF REPRESENTATIVES
EIGHTY - SEVENTH
SESSION
HOUSE FILE NO. 5
January 10, 2011
Authored by Peppin, Smith, Nelson, Mahoney, We tpan and others
The bill was read to, the first time and nefe¢ed to the Committee on Oovemment Opembons and Elections
1.1 A bill for an act
1,.2 relating to local government; providing for variances from city, county, and town
13 zoning controls and ordinances; amending Minnesota Statutes 2010, sections
1.4 394.27, subdivision 7; 462.357, subdivision 6.
1.5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1. Minnesota Statutes 2010, section 394.27, subdivision 7, is amended to read:
1.7 Subd. 7. Variances; hardship practical difficulties. The board of adjustment
1.9 shall have the exclusive power to order the issuance of variances from the terms of any
].y official control including restrictions placed on noneonformities. Variances shall only be
1.10 permitted when they are in harmony with the general purposes and intent of the official
1.11 control in -
1.12 , and when the terms of the variance
1.13 are consistent with the comprehensive plan.
1.14 gTftfflillc
1.15
1.16
1.17 . Variances may be
1.18 granted when the applicant for the variance establishes that there are practical difficulties
1.19 in complying with the official control. 'Practical difficulties," as used in connection with
1.20 the granting of a variance, means that the property owner proposes to use the property in a
1.21 reasonable manner not permitted by an official control; the plight of the landowner is due
1.22 to circumstances unique to the property not created by the landowner; and the variance
1.23 if granted, will not alter the essential character of the locality. Economic considerations
124 alone shall do not constitute a hattiship if a masortabie use fot
Section 1.
01 /04111 REVISOR JMR/RC 11 -0607
3.1 sha$do not constitute
ttildel
32 practical difficulties. Practical
3.3 difficulties include, but is are not limited to, inadequate access to direct sunlight for solar
3.4 energy systems. Variances shall be granted for earth sheltered construction as defined in
3.5 section 216C.06, subdivision 14, when in harmony with the ordinance. The board of
3.6 appeals and adjustments or the governing body as the case may be, may not permit as a
3.7 variance any use that is not perrniEted atlowed under the zoning ordinance for property in
3.8 the zone where the affected person's land is located. The board or governing body as the
3.9 case may be, may permit as a variance the temporary use of a one family dwelling as a two
3.10 family dwelling. The board or governing body as the case may be may impose conditions
3.11 and mifig tiny requirements in the granting of variances to insure compliance trid, to
3.12 protect adjacent properties, and to protect the public health. safety or the environment.
3.13 EFFECTIVE DATE. This section is effective the day following final enactment
Sec. 2. 3
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ZEA UE of
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(MNNESOTA
CITIES
What is a variance?
CONNECTING & INNOVATING
SINCE 1913
VARIANCES
Frequently Asked Questions
(Reflects 2011 law change)
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 plarming 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. $ 462357.
What kind of authority is the city exercising?
A city exercises so- called "quasi - judicial" authority when considering a variance application. Thi
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 tbree - 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 145oNivERSITvnve.WEST PHONE: (651)281 -3200 FAX (651) 281 -1298
INSURANCE TRUST 1 PAUL, MN5.5103 -2044 TOLL FRfe(800)925 -3122 wen:mwwtmc.oxc
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.
2
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. & 462357.
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. & 15.99.
3
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. Star. 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
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