Agenda Packets - 1985/05/06 - Laserfiche WebLink

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enterprise, even though the proposed rezoning may be incompatible with the surrounding homes due to excessive noise, glare, and traffic. Care should be used by the local officials in issuing rezonings or zoning amendments. If too many zoning amendments are authorized, it may and often does destroy or seriously weaken the planning process. It may also open the local community to lawsuits from adjacent property owners. Dowry zoning. Local officials should also be aware of some of the problems involved in down zoning; that is, amending the zoning ordinance in such a way as to change a zoning district from a higher to a lower density or from a "higher" use (in terms of land values) such as commercial or industrial to a "lower" use such as residential. It has been maintained by some individuals and landowners that a community cannot down zone since it will adversely affect property values. The theory behind this argument is that somehow a zoning ordinance vests absolute rights to a pro- perty owner of some of his anticipated profits and that down zoning amounts to inverse condemna- tion. It is clear that if all down zoning were held to be illegal, it would substantially limit the local com- munity's ability to plan and change the com- prehensive plan and zoning ordinance. In a recent law case in California (Eldridge vs, City of Palo Alto) the court recently upheld the City of Palo Alto in down zoning an area by creating an open - spare district from a high -density residential district. The city attorney argued successfully that this did not amount to inverse condemnation and cited the case of Morse vs. County of San Luis Obispo where the court stated that ".. , owners have no vested right in an existinf. zoning ordi- nance. A purchaser merely acquires a right to continue a use instituted before the enactment of a more restricted zoning." It should be noted that down zoning has not yet been tested in the courts in Minnesota. Zoning Variance Perhaps the zoning device which is the least understood and the most subject to abuse is the zoning variance. The term "variance" has been interpreted by many local officials, planning professionals and even attorneys in its coloquial sense - that is, as a variance from the zoning ordinance that can be issued by the local com- munity 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 sped -at f circumstances. Basically, a zoning variance is a modification of the terms of the zoning ordinance in order to provide relief to a property owner in those cases where the ordinance imposes undue hardship or practical difficulties to the property owner in the use of his land. The hardship must not have been created by actions of the landowner. There are two types of variances - the bulk or area rarlance and the use rariance. The bulk or area variance deals with modifications in area requirements such as lot widths or depths or set -back requirements. The use variance is an authorization of land use in a district that differs from the land uses normal- ly allowed in that district. It should be emphasized that many planning professionals, including this author, are opposed to use variances for a number of reasons. For one, the issuance of a use variance is likely to create a monopoly situation in a parti- cular land use district. Second, if too many use variances are issued by the elected officials, it will seriously weaken the zoning and planning process. Many planning professionals are recommending that the use variance be prohibited and that the zoning amendment or conditional use permit,- ' -used in place of the use variance. The Col. Planning Act (M.S. 394.27, Subd. 7) specifica,., prohibits the issuance of use variances; and the Municipal Planning Act only authorizes one typr of use variance (temporary use of one family dwelling as two family dwelling - M.S. 452357, Subd. 7). One of the problems which the courts have wrestled with is the definition of "practical dif- ficulties" and "undue hardship." The following are the factors which one court used and which other courts are likely to use in determining whether a landowner has incurred undue hardship: The parcel of land cannot yield a "reason. able return" if used only for a purpose allowed in the zoning district (for use variances only). The courts have 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 sufficient grounds for grantijtg a variance. 2. The plight of the owner of the land must be due to unique circumstances. If< hardship is common to several prope the variance cannot be granted. The pro remedy under such circumstances is a zoning amendment. 107 -