Agenda Packets - 1983/08/22 - Laserfiche WebLink

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70 i vdlucs. The Theory bchinJ tlu% an;nm�m c, Thal somehow a tuning oldin.rnrc cash •Ilh�,l,IIL n;;lus In a property owner of some of his anlicipawd profits and that this amounts Io inverse conderuna. lion. It is clear that if all down zoning were held to be illegal, it would substantially limit the local community's ability to plan and change the uun- prelhensive plan and zoning ordinance. In a recent law case in California (Ehiridge vs. City of I'ulo Alto) the court recently upheld the GIV of Palo Alto in down zoning an area by creating an npen- space district hunt a high -density residential (B- Irict. The city allorney argued successfully Thal this did not amount to inverse condemnation and cited the case of Alorse vs. County of Sur' /.Lois Ohivpo where the court stated that " .... ownels have no vested right in an existing zoning onli- nance. A purchaser merely acquires a right to con- tinue a use institut,•d before the enactment of a more restricted zoning." II should be noted that down zoning has [loll yet been tested in the courts in Minnesota. Zoning Variance Perhaps the toning device which is Ill` least understood and the most subject to abuse is the zoning variance. The term "variance" has been interpreted by many local officials, planning pro- fessionals and even attorneys in its coloquial sense - that is, as a variance from the zoning ordinance that can be issued by the local community at will. It should be noted at the outset, however, that a variance has a special legal meaning and should only be issued under certain special circumstances. basically, a zoning variance is a mortification of the terms of the zoning ordinance in order to pro- vide relief to a properly owner in those cases where the ordinance imposes lindue hardship or practical dif/iculliex to the property owner in the use of his land, The hardship must nut havc been created by actions of the landowner. There are two types of variances - the bulk or area variance and the use variance, The bulk or area variance deals with modifications in area requirements such as lot widths or depths or setback requirements. The rse variance is an authorization of land use in a ,,.district that differs from the land uses normally al- lowed in that district. It should be emphasized that many planning profcssign is, including this author, dr• u;q, red In use cuiances for a number of u,r„nn. I n nor. the issuance 4.1 use variance is likely u1 a .uc .t nu,nopoly situation in a parli• cular lend Lou district. Second, if ton many use vari,mccs are issued by the elected officials, it will seriously weaken the inning and planning process. Many planning pr)fo6mals are recommending That the use variance Ire prohibiled and that the toning anhendnunl or conditional use permit be used in place of the use variance. The County 11I:mning Act (M.S. 394.27, Subd. 7) specifically prohibits Ilse issuance of ace variances; and Ills Municipa! Ilanning Act mly authoritcs rote Iypc of use v.oiance (lemporary use of one family dwcl- ling as Iwo Gunily dwelling - M.S. 462.357, Sllbul. 7). One of the problems which the courts have wrestled with is the definition of "practical diffi- cullies" and "undue hardship." The follow'ingare the facturs which one court used and which other courts are likely to Lose in determining whether a landowner has incurred undue hardship: I. fhe parcel of land cannot yield a "reason- able" return if used only fora purpose al- lowed in the zoning district (for use vari- ances only). The courts havc also held, however, that proof that the owner could realize a higher financial return for his land as a result of the variance is not suf- ficient grounds for granting a variance. 2. The plight of the owner of the land must be due to unique circumstances. If the hard. ship is common to several properties, the variance cannot be granted. The proper remedy under such circumstances is a zoning amendment. 3. The modification will not alter the essential character of the area and should be in con- formance with the comprehensive plan. So "hardship" means more than ordinary in. convenience or difficulty; the courts have interpre. led hardship very stringently. If use variances are nut allowed (as recommended by this author) then the variances should only be applicable in those cases where the owner because of odd -shaped lots or lot remnants is unable to meet the dimensional standards in the zoning ordinance. It should also he noted that special restrictions can be imposed in I Ill