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2 0 1 1 LEGISLATIVE ISSUES C'it Var'iance A Supreme Court ruling last yeargreatly limited cities'authority to grant variances. During the 2011 legislative session, the League of Minnesota Cities will work to restore that authority. In the meantime, cities must make adjustments. By Craig Johnson n the world of law,a single court conditions allowed by the official circumstances where the"property ruling can suddenly and unexpect- controls. owner would like to use the property edly change decades of precedence. ■ The plight of the landowner is due to in a reasonable manner that is prohib- That definitely proved to be true for circumstances unique to the property ited by the ordinance" municipal variance authority last year. not created by the landowner. The Supreme Court stated that In the case of Krummenacher v.City ■ The variance,if granted,will not alter "unless and until the Legislature takes of Minnetonka,the Minnesota Supreme the essential character of the locality. action to provide a more flexible vari- Court issued a decision last June that In its decision,the court held that ance standard for municipalities,we are changed the longstanding interpretation the"reasonable use"prong of the constrained by the language of the stat- of the statutory standard for granting "undue hardship"test is not whether ute to hold that a municipality does not zoning variances.The decision also went the proposed use of the property is have the authority to grant a variance counter to 20 years of previous rulings reasonable,but whether any reason- unless the applicant can show that her by the Minnesota Court ofAppeals. property cannot be put to a reasonable ' Background N its deasioq the court held that the use without the variance." The City of Minnetonka issued a vari- Counties in opposite position ance to a residential property owner, "reasonable use"prong of the"undue The Supreme Court also reviewed the permitting the vertical expansion of a parallel county authority that allows for legal,non-conforming garage.The city, hardship"test is not whether the proposed a variance in situations of"practical dif- relying on a 1989 Minnesota Court of use of the ficulties"or"hardship,"which are found Appeals decision and other judicial pre- property is reasonable,but in Minnesota Statutes,section 394.27, cedence,concluded that the grant of subdivision 7.The court found that the the variance was appropriate.The city's whether airy reasonable use of the prop• cit,authority was more limited because decision was challenged by an adjacent e,ty exists in the absence of a variance. it did not contain the"practical difficul- property owner.Both the district court ties"provision found in that section. and the Minnesota Court of Appeals Counties,meanwhile,have been agreed with the city's decision.On able use of the property exists in the adapting to a change in how that same June 24,2010,the Minnesota Supreme absence of a variance.This establishes a section of law functions for them after Court reversed the Court of Appeals high threshold for both the city and the a 2008 Supreme Court opinion(Stads- decision,and found the city's variance property owner when considering vari- void v.County of Ottertail Board ofAdjust- impermissible. ance requests.Furthermore,it means ments).The court distinguished between In Krummenacher v.City of that in the vast majority of cases,cit- "practical difficulties"and"particular Minnetonka,the Supreme Court exam- ies do not have the authority to grant a hardships,"the terms used in that sec- ined the statutory definition of"undue variance to local zoning regulations. tion of law,and the types of variances hardship."The statutes that limit when The Supreme Court explicitly rec- to which each apply. ' a variance may be granted are found in ognized that it was changing a long- The court applied the more easily Minnesota Statutes,section 462.357,sub- standing standard that cities have relied met standard—practical difficulties--to division 6,and list three tests that must on in considering variance requests.In area variances where a property owner be met for a variance to be appropriate particular,the court specifically rejected is seeking to avoid a lot restriction set due to an undue hardship.They are: a 1989 Court of Appeals interpretation in ordinance,such as a setback,fenc- e The property in question cannot be of the phrase"undue hardship,"which ing,height,density,or parking space. put to reasonable use if used under allowed for the grant of a variance in The court applied the more stringent 8 MINNESOTA CITIES JANUARY-FEBRUARY 2011 Administrative Track-2011 Variances:Very Variable?Verifying Variance Variety in the Vernacular-67