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May 31, 2011 <br />Mr. Michael Mornson <br />City Manager <br />City of St. Anthony <br />3301 Silver Lake Road <br />St. Anthony, MN 55418 <br />1:30RSEY" 29 <br />DORSEY & WHITNEY LLP <br />JEROME P. GILLIGAN <br />(612) 340-2962 <br />FAX (612) 340-2643 <br />gilligan.jerome@dorsey.com <br />Re: Amendment to Zoning Code for Nonconformities and Variances <br />Dear Mr. Mornson <br />The City Council is considering amendment to the provisions of the City's Zoning Code <br />relating to nonconformities and variances. These changes are necessary to update the Zoning <br />Code to reflect the current provisions of Minnesota Statutes, Section 462.357 dealing with <br />nonconformities (Minnesota Statutes, Section 462.337, subd, le) and variances (Minnesota <br />Statutes, Section 462.357, subd. 6). <br />Minnesota Statutes, Section 462.357, is the statute that gives the City the authority to <br />adopt its Zoning Code and sets forth various zoning requirements. The Minnesota Legislature <br />has previously adopted revisions to Minnesota Statutes, Section 462.357, subd. le that provide <br />that any nonconformities may be continued, including though repair, replacement, restoration, <br />maintenance or improvement, but not including expansion, unless (i) the nonconformity or <br />occupancy is discontinued for a period of more than one year; or (ii) any conforming use is <br />destroyed by fire or other peril to the extent greater than 50% of its estimated market value and <br />no building permit has been applied for within 180 days of which the property is damaged. <br />Currently Section 152.226 of the City Code does not comply with the provisions of <br />Minnesota Statutes, Section 462.357, subd. le, because it provides that no nonconformity may be <br />reconstructed or replaced. The City's Zoning Code provisions for nonconformities cannot be <br />more restrictive than Minnesota law, and Section 152.226 of the City Code should be amended <br />by the City Council to comply with the current requirements of Minnesota law for <br />nonconformities. <br />In 2010 the Minnesota Supreme Court in Krummenacher v. Minnetonka interpreted the <br />"undue hardship" standard for the granting of variances then contained in Minnesota Statutes, <br />Section 462.357, subd. 6, to require a variance applicant to prove that the property in question <br />cannot be put to a reasonable use without the variance. This interpretation by the Supreme Court <br />of the standard for granting variances resulted in cities being unable to grant variances in <br />DORSEY & WHITNEY LLP • WWW.DORSFY.COM • T 612.3402600 • F 612340.2868 <br />SUITE 1500 • 50 SOUTH SIXTIi STREET • MINNEAPOLIS, MINNESOTA 55402-1498 <br />LJSA (-ANA[>A EIJROPG. ASIA -PACIFIC <br />