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1 requirement—particular hardship— responses cities can consider to keep latitude to allow"variance-like" to use variance requests,which are their regulatory systems functional until approvals under the zoning code.For requests to use the property in a way a legislative correction can-be achieved: instance,a city might establish alter- that is not otherwise allowed under • Reevaluate the variance criteria. native setback requirements to allow adopted zoning regulations.The court Cities are reevaluating the criteria for construction that is consistent reached this conclusion despite the fact they have historically used in decid- with neighborhood attributes. that the statute specifically states that ing whether or not to grant a variance. use variances are forbidden.The court The Supreme Court's decision limits a Legislative solution went on to define a list of tests that city's discretion.The ruling limits the u noted ld the comments enof Chief would determine when a practical dif- authority to circumstances where the Justice Gildea in the Krummen needhered to frculty exists. property owner can demonstrate that ion,legislative action will be needed That ruling left counties in the exact there is not a reasonable use of restore the flexibility for municipalities to grant variances.Ideally,local govern- opposite position of cities.In marry cases, the property absent the variance. counties feel they have no option but to ■ Make sure reasons for variances are ment variance-authority language that grant area variance requests,since"par- clear. In circumstances where the is clear,consistent,and well-defined titular hardship"is no longer allowed city council believes a variance will come out of this legislative session. to be used as a test in those cases,and is appropriate,the city must take While the legislation is not expected to because of the broad description given great care to make a detailed find- be controversial,the League of Minne- of what constitutes"practical difficulty." ing describing why the grant of sota Cities has made this a priority issue the variance is necessary to provide to be resolved as quickly as possible in Interim impacts the property owner with areason- the 2011 legislative session.A quick reso- Many cities have ordinances that are lution will help avoid confusion for city drafted to provide a solid baseline that officials and the public,prevent needless protects public health,safety,and wel- The Knmimenaeher decision has left changes to systems that functioned well, fare while leaving room for appropri- and avert costly litigation. ate exemptions that do not jeopardize cities with the choice of hoping their The need for this legislation also those goals.They often allow for vari- provides an opportunity to redraft the antes in cases where the standard can- variances aren't challenged,making county and city variance authority Ian- not be reasonably met,the problem was guage found in their respective sections not caused by the actions of the prop- significant and complicated changes of law to make them consistent.The erty owner,and the exception will not League's initial proposed legislative change the nature of the neighborhood. to how they have dr fled theirLeague's will likely make identical most ordinances,or simply refusing to The Krummenacher decision has left of the language in Minnesota Statutes, iti cities with the choice of hoping their section 462.357,subdivision 6 (2)and variances aren't challenged,making sig- consider granting any variances until Minnesota Statutes,section 394.27,subdi- nifrcant and complicated changes to vision 7.This would eliminate confusion how they have drafted their ordinances, the Legislature resolves the issue. and the need for judicial cross-references or simply refusing to consider grant- about which wording,standards,and ing any variances until the Legislature tests apply to cities and counties. resolves the issue.This means that a proj- able use of his or her property.What During the legislative interim,the ect that might have previously qualified constitutes a reasonable use of prop- League has worked with cities,counties, for a variance cannot move forward in erty is not defined and may differ municipal law experts,and other inter- most communities right now.City offi- depending on the unique circum- ested parties to determine how to amend cials are very concerned about what that stances of the property and attributes current statutes to clarify the issue for could mean for badly needed economic of various communities. the courts.The goal is to do this without and residential development projects. ■ Reexamine the zoning code. If a city substantially changing the authority as it This ruling gets even more problem- routinely grants variances,this may was understood prior to the Krummen- atic when coupled with state land use be an indicator that it may want to acher case.The proposed legislation will regulations.Many of those rules,such as reexamine its zoning code to ensure use the term"practical difficulties"as the state shoreland regulations and metro- that standards,setbacks,uses,and test for area variances,and will define politan land use regulations,are written other requirements are consistent what that term means for the purposes intentionally to use the variance pro- with the city council's current vision of granting variances. cedure to identify cases where a special for the community.Some cities are To read the League's policy on this case justifies a different solution within using this ruling as an opportunity issue(SD-23),access the 2011 City Policies set parameters.In light of Krummenacher, to review their land use practices. at www.ltnc.org/poHcies. the authority to grant variances in those • Build in Jkxibility. Cities can build cases is limited,which makes some of greater flexibility into their exist- Craig Johnson is intergovernmental relations the standards unintentionally restrictive. ing conditional use permit,planned representative with the League of Minnesota Because of the far-reaching nature unit development,and setback regu- Cities.Phone:(651) 281-1259.E-mail: of the decision,there are'at least four lations to explicitly afford greater 4ohnson@1mc.org. J A N U A R Y-FEBRUARY 2 0 1 1 MINNESOTA CITIES 9 Administrative Track-2011 Variances:Very Variable?Verifying Variance Variety in the Vemacular-68