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1 <br />Kennedy Fifth Street Towers <br />150 South Fifth Street, Suite 700 <br />Minneapolis, MN 55402 <br />& <br />Graven (612) 337-9300 telephone <br />(612) 337-9310 fax <br />http://www.kennedy-graven.com <br />C H A R T E R E D <br /> <br /> <br />MEMORANDUM <br /> <br />To: Jon Sevald, Community Development Director <br />From: Scott Riggs, City Attorney <br /> Sam Ketchum, Attorney <br />Date: January 25, 2021 <br />Re: Land Use Applications and Tulien v. City of Minneapolis Case <br /> <br /> <br />I. INTRODUCTION <br /> <br />This memorandum discusses land use applications in light of the Minnesota Court of <br />Appeals recent decision this January in the Tulien case.1 The case is “non-precedential,” which <br />means it is not binding authority but can be persuasive authority for future cases. The decision <br />nonetheless provides a good case study and set of take-aways related to Mounds View’s review of <br />land use applications, specifically variance and conditional use permit (“CUP”) applications. <br /> <br />II. BACKGROUND AND ANALYSIS OF DECISION <br /> <br />A developer originally requested several variances and a CUP. Minneapolis city planners <br />recommended that the Planning Commission deny the variances because they were "driven solely <br />by economic considerations" and deny the CUP application because it "risked injuring the use and <br />enjoyment of surrounding property." However, the Planning Commission granted the variances <br />and the CUP. A neighbor, Tulien, appealed the Planning Commission decision but the City <br />Council approved the applications. Tulien appealed the City's decision to district court, which <br />ruled in favor of the City and developer. Tulien then appealed the district court decision to the <br />Court of Appeals. In its decision, the Court of Appeals found that the district court erred and that <br />the City should not have granted the variances and CUP. <br /> <br />On the variances issue, the decision is about a city making legally insufficient practical <br />difficulty findings. Minneapolis made findings that "a practical difficulty exists due to the current <br />zoning code" in granting minimum loading, maximum lot coverage, and multiple setback <br />variances. Minn. Stat. 462.357, Subd. 6(2) requires that practical difficulties must be "due to <br />circumstances unique to the property not created by the landowner." A line of case law requires <br /> <br />1 Tulien v. City of Minneapolis, No. A20-0542, 2021 WL 79526 (Minn. Ct. App. 2021) (link to decision: <br />https://mn.gov/law-library-stat/archive/ctapun/2021/OPa200542-011121.pdf) <br />