Agenda Packets - 1986/04/21 - Laserfiche WebLink

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enterprise, even Ihough the Illopincd rctoninµ MAY be incompatible wish the surruundmg homes due to excessive norse, glare, and traffic. Care should be tiled by tale local uffKfals in issuing rctunings or tuning amendments. If loci many rnnmg amendments ale authulued, It may and often dues Jeslruy of aenUU►ly weaken the planning process. II may 4hu Open the local community to lawsuits from adlacenl property owners. Down :urdrq. Local offKuh sluwld also be aware of some of the problems Involved in down toning, that is, Amending lire zoning u4nance in such 4 way as to change a tonc.g district fro,n a higher to a lower density or from a "higher" use (m ecrins of land values) such at commercial or indu►inal to a "lower" use such as residential. It hat been maintained by some individuals and landowners that a community cannot down zone since it wdi adversciy afftci property Values. Tile theory behind this argument is that somehow a toning ordinance veils absolute rights to a pro. petty owner of some of Ibis anticipated profits and that down toning amounts to inverse condemna- tion. It is clear that if all down toning were held to be illegal, it would substantially limit the local tom• munity's ability to piao and change the com- prehensive plan and toning ordinance. In a recent law case in California (Eldridge vs. CITY of Palo Ado) lire court recently upheld the City of Palo Alto in down toning an area by creating an open• space district from a high -density resident.ah district. The city attorney aigued successfully that this did not amount to inverse condemnation and cited the cast of Morse vs County or San Luis Obbtrrr where the court stated that "... owners have no vested right in an existing toning 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 toning has nut yet been tested in the courts in Minnesota. Zoning Variance Perhaps the toning device which is the least understood and the most subject to ahuu is the toning variance. The term "variance" has been interpreted by many local officials, planning professionals and even attorneys in its coloquial sense • Ihal it, as a variance from file toning ordinance that can be issued by the local com- munoy at will. It dhuuld be noted at the uutxt, however, IIlat a variance hat a special legal morning and should only be asueJ under certain specs' Urcullhtlancel. Uasfully, a tuning variance is a modification of the terns of the toning ordinance in order to provide relief to a properly owner in those asss where the ordinance imputes undue hardship or lrracirtal difllCulnr•s to the property owner in the use of his land. The hardship must not have bun created by actions of Ine landowner. There Are two types of variances • file bulk up area rararrce and the we itriaue. The bulk or era variance deals with modlDcatinns III area requirements such as lot widths or depths or set -back requirements. The use variance is an aulhuritatnon of land use in a district that differ► from the land uses normal- ly allowed in that district II should be emphasized that many planning proresshonall, including this Author, Are opposed to use variances for a number of reasont. For one, the Issuance of a use variance is likely to crate a monopoly situation in a part,- colat land use district. Second, if too many use variances are Issued by the elected officials, it will seriously weaken the toning and planning process. Many planning professionals are recommending that the use vananse be prohibited and that the toning amendment or conditional use permit be used In place of the use variance. The Count Planning Act (M.S. 394,27, Subd. 7) specifically — ,,ohibits the issuance of use variances, and the Municipal Planning Act only authorizes one type of use variance (temporary use of one family dwelling as two family dwelling - M.S. 462.357, Subd. 7), One of the problems which the courts have wre, led with is the definition of "practical dif- ficulties" and "undue hardship." The following are the factors which one court used and which other courts arc likely to use in determining whether a lai,downer has incurred undue hardship. The parcel of land cannot yield a "reason• able return" if us:d 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 granting a variance. 2. The plight of the owner of the land must ' be due to unique circumstances. If lh, hardship is common to several properties the variance cannot be granted. The proper remedy under such circumstances is a toning amendment. 107-