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Conditional Use Permits and Variances By Erin Pratt n Minnesota,property owners been met.If the proposed use satisfies variances.One of the most important can request deviations from the the standards,however,the council is the application of the 60-day rule,set strict enforcement of a city's must grant the CUP. forth in Minnesota Statute § 15.99.The zoning ordi-nance through con- Procedural requirements and standards statute provides that a municipality must ditional use permits (CUPs) and for granting variances.The procedural approve or deny a written request relat- variances.On the surface,CUPs requirements for granting a variance are ing to zoning within 60 days.If the variances appear similar. set forth in Minnesota Statute§462.357, city does not act,the request is deemed However,city officials should know subdivision 6.Under this statute,the automatically approved.Minnesota about important differences before board of appeals and adjustments hears courts have generally demanded strict deciding to grant or deny a request. variance requests.The board may be a compliance with the requirements of The most important distinction separate body,a planning commission this law.Given the numerous require- between a CUP and a variance is the or a council.A strict reading of Min- ments of this law,please contact the type of deviation from the zoning ordi- nesota Statute 462.357,subd.6,does League's Research Department for nance. CUPs involve uses that generally not mandate a public hearing;however, detailed memoranda outlining the statute. are not consistent with a particular zon- Minnesota Statute 462.357,subd.3, Right of appeal.Any aggrieved ing district,but are allowed in specific states:"No zoning ordinance or amend- person can challenge a city's action on a circumstances set forth in a city's zon- ment ... shall be adopted until a public variance or CUP in state district court. ing ordinance.For example,a city may hearing has been held."A variance However,the city's zoning ordinance allow a business in a residential district could be considered an amendment. may require the party to first exhaust if the business meets the requirements Despite the legal uncertainty,the administrative appeals.When reviewing set forth in its zoning ordinance.On League recommends holding a public a city's action,courts give the deciding the other hand, variances are permitted hearing for variance requests.A hearing body broad deference and will look to departures from strict enforcement of a provides both the property owner and see whether its action was reasonable. zoning code as applied to a particular affected neighbors a chance to present Courts will overturn a city's decision piece of property if strict enforcement their views,and may prevent a challenge if it is found to be arbitrary and capri- would cause the owner undue hardship. to the board's decision. cious,meaning it is not supported by For example,an owner may apply for The board may grant a variance only factual evidence.Therefore,in acting a variance from a zoning ordinance's when strict enforcement of the zoning on CUP and variance applications,the height limitations. ordinance causes the owner undue city should make written finding sup- Procedural requirements and hardship.Undue hardship means: porting its decision. Courts will look standards for granting CUPs.The pro- ■ The property cannot be put to reason- to such findings if the grant or denial is cedural requirements for granting a able use without the variance. challenged. CUP are found in Minnesota Statute ■ The owner's plight is not caused by For more information. If you have § 462.3595.A city council or planning the owner and is due to circumstanc- questions or would like more informa- commission must first hold a public es unique to the property. tion on this topic,please contact the hearing.The statute requires at least ■ The variance,if granted,will not League Research Department at (651) 10 days notice in the official newspaper. alter locality's essential character. 281-1220 or (800) 925-1122.Ir Although not mandated by statute, Under this standard,owners must many zoning ordinances have a city's show they would like to use their land planning commission review the re- in a reasonable manner that is prohibited quest and make a recommendation to by the zoning ordinance.Additionally, the council.The council,or other des- economic circumstances cannot,by ignated authority,then decides whether themselves,create an undue hardship. the proposed use meets the standards The board has broad discretion when laid out in the zoning ordinance. determining whether an owner will Councils have wide discretion in suffer an undue hardship. Erin Pratt is research attorney with the determining whether or not the stan- Application of the 60-day rule.There League of Minnesota Cities. Phone:(651) dards in the zoning ordinance have are also similarities between CUPs and 281-229, E-mail:epratt@lmnc.org. MAY 2 0 0 4 MINNESOTA CITIES 19