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' ' Variances Conditio nal Use Permits and By Erin Pratt n Minnesota, property owners can the standards, however, the council CUPS and variances. One of the most request deviations from the strict must grant the CUP. important is the application of the enforcement of a city's zoning ordi- Procedural requirements and standards 60-day rule, set forth in Minnesota nance through conditional use permits for granting variances. The procedural Statute § 15.99. The statute provides (CUPS) and variances. On the surface, requirements for granting a variance are that a municipality must approve or deny CUPs variances appear similar. set forth in Minnesota Statute§462.357, a written request relating to zoning However, city officials should subdivision 6. Under this statute, the within 60 days. If the city does not act, know about important differences board of appeals and adjustments hears the request is deemed automatically before deciding to grant or deny a request. variance requests. The board may be a approved. Minnesota courts have gen- The most important distinction separate body, a planning commission erally demanded strict compliance with between a CUP and a variance is the or a council. A strict reading of Minne- the requirements of this law. Given the type of deviation from the zoning ordi- sota Statute 462.357, subd. 6, does not numerous requirements of this law, nance. CUPS involve uses that generally mandate a public hearing; however, please contact the League's Research are not consistent with a particular Minnesota Statute 462.357, subd. 3, Department for detailed memoranda zoning district, but are allowed in spe- states: "No zoning ordinance or outlining the statute. cific circumstances set forth in a city's amendment ... shall be adopted until Right of appeal. Any aggrieved zoning ordinance. For example, a city a.public hearing has been held." A person can chall enge a city's action on a may allow a business in a residential variance could be considered an variance or CUP in state district court. district if the business meets the require- amendment. However,-the city's zoning ordinance ments set forth in its zoning ordinance. Despite the legal uncertainty, the may require the party to first exhaust On the other hand, variances are permit- League recommends holding a public administrative appeals. When reviewing ted departures from strict enforcement of hearing for variance requests. A hearing a city's action, courts give the deciding a zoning code as applied to a particular provides both the property owner and body broad deference and will look to piece of property if strict enforcement affected neighbors a chance to present see whether its action was reasonable. would cause the owner undue hardship: their views, and may prevent a challenge Courts will overturn a city's decision if For example, an owner may apply for a to the board's decision. it is found to be arbitrary and capricious, variance from a zoning ordinance's The board may grant a variance only meaning it is not supported by factual height limitations. when strict enforcement of the zoning evidence. Therefore, in acting on.CUP Procedural requirements and standards ordinance causes the owner undue and variance applications, the city should for granting CUPS. The procedural hardship. Undue hardship means: make written finding supporting its requirements for granting a CUP are ■ The property cannot be put to reason- decision. Courts will look to such.find- found in Minnesota Statute § 462.3595. able use without the variance. ings if the grant or denial is challenged. A city council or planning commission s The owner's plight is not caused by For more information. If you have . must first hold a public hearing. The the owner and is due to circumstances questions or would like more informa- statute requires at least 10 days notice unique to the property. tion on this topic, please contact the in the official newspaper. Although not ■ The variance, if granted, will not League Research Department at (651) mandated by statute, many zoning alter locality's essential character. 281=1220 or (800) 925-1122. Ir ordinances have a city's planning com- Under this standard, owners must mission review the request and make a show they would like to use their land recommendation to the council. The in a reasonable manner that is prohibited council, or other designated authority, by the zoning ordinance. Additionally, then decides whether the proposed use economic circumstances cannot, by meets the standards laid out in the zon- themselves, create an undue hardship.. ing ordinance. The board has broad discretion when Councils have wide discretion in determining whether an owner will Erin Pratt is research attorney with the determining whether or not the stan- suffer an undue hardship. dards in the zoning ordinance have Application of the 60-day rule. League of Minnesota Cities..Phone: (651) 281-229. E-mail: epratt @lmnc.org. been met. If the proposed use satisfies There are also similarities between MAY 2004 MINNESOTA CITIES 19