HomeMy WebLinkAboutPL PACKET 05172011 Meeting Sheet
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Box: 33
Folder: PL PACKETS 2005-2011
Document: PL PACKET 05172011
CITY OF ST. ANTHONY
PLANNING COMMISSION MEETING AGENDA
TUESDAY, MAY 17, 2011
REGULAR PLANNING COMMISSION MEETING
7:00 P.M.
COUNCIL CHAMBERS
I. CALL TO ORDER.
II. ROLL CALL.
III. PLEDGE OF ALLEGIANCE.
IV. APPROVAL OF MEETING AGENDA.
V. APPROVAL OF MEETING MINUTES OF JANUARY 18, 2011
VI. COMMUNICATION WITH CITY COUNCIL.
VII. PUBLIC HEARINGS.
NONE
VIII. CONCEPT REVIEWS.
NONE
IX. REPORTS FROM STAFF.
IX.1. New Variance Legislation
IX.2. Conditional Permitted Uses in Industrial Zoning District
X. OTHER BUSINESS.
X.1. Code Enforcement Report, Update
XI. COMMUNITY FORUM. individuals may address the Planning Commission about any item not included on
the regular agenda. Speakers are requested to come to the podium,sign their name and address on the form at
the podium,state their name and address for the Clerk's record, and limit their remarks to five minutes The
Planning Commission may refer the matter to staff for a future report or direct the matter to be scheduled on an
upcoming agenda.
XII. INFORMATION AND ANNOUNCEMENTS.
XIII. ADJOURNMENT.
FAPlanning\PC Agendas\201 1\0517201 1 pc agenda.doc
r
1 CITY OF ST. ANTHONY
2
3 PLANNING COMMISSION MEETING
4
5 JANUARY 18, 2011
6 7:00 p.m.
7
8
9 I. CALL TO ORDER.
10
11 Chair Jensen called the meeting to order at 7:00 p.m.
12
13 II. ROLL CALL.
14
15 Commissioners Present: Chairperson Jensen; Commissioners Niccum, Cincoski, Poucher,
16 Heinis, and Chaput.
17 Absent: Commissioner Crone.
18 Also Present: Assistant City Manager Kim Moore-Sykes.
19
20 III. PLEDGE OF ALLEGIANCE.
21
22 Chair Jensen invited the Commission and the audience to join him in the Pledge of Allegiance.
23
24 IV. SPECIAL ORDER OF BUSINESS.
25
26 IV.1. NOMINATION AND ELECTION OF CHAIR
27
28 Motion by Commissioner Chaput, seconded by Commissioner Niccum, to approve the
29 nomination of Don Jensen as Planning Commission Chair.
30
31 Chair Jensen indicated that it may be necessary for him to relinquish the Chair position to the
32 elected Vice Chair partially through the 2011 term due to business commitments.
33
34 Motion carried 5-0-1 (Jensen abstained).
35
36 IV.2. NOMINATION AND ELECTION OF VICE CHAIR
37
38 Motion by Commissioner Niccum, seconded by Commissioner Poucher, to approve the
39 nomination of Brian Heinis as Planning Commission Vice-Chair.
40
41 Motion carried 5-0-1 (Heinis abstained).
42
43 V. APPROVAL OF MEETING AGENDA.
44
45 Consensus of the Board was to approve the meeting agenda of January 18, 2011 as submitted.
46
47 VI. APPROVAL OF MEETING MINUTES
48
Planning Commission Regular Meeting Minutes
January 18, 2011
Page 2
1 Motion by Commissioner Cincoski, second by Commissioner Chaput, to approve the August 17,
2 2010 Meeting Minutes as submitted.
3
4 Motion carried unanimously.
5
6 VII. COMMUNICATION WITH CITY COUNCIL
7
8 Assistant City Manager Moore-Sykes reported that a joint work session with the City Council is
9 scheduled for March 15, 2011. Details will be forthcoming.
10
11 Assistant City Manager Moore-Sykes indicated that the Board has been provided with the
12 updated Planning Commission Roster. She requested members to provide her with any updated
13 contact information.
14
15 VIII. PUBLIC HEARINGS
16
17 None.
18
19 VIII. CONCEPT REVIEWS
20
21 Assistant City Manager Moore-Sykes reported that the IHOP development is coming along
22 nicely and is expected to open in February.
23
24 IX. OTHER BUSINESS.
25
26 IX.1. WORK SESSION TOPICS FOR 2011
27
28 Assistant City Manager Moore-Sykes reviewed the following suggestions for work session
29 topics in 2011:
30 • Update on Code Enforcement activities by the Fire Chief—March 15, 2011 (tentative).
31 • Government training Services Seminars and workshop for 2011 —schedule not yet
32 available.
33 • League of Minnesota Cities Staff Attorneys to discuss land use planning and zoning
34 topics of interest, legislation—new and amended—May/June.
35 • League of Minnesota Cities Representative to discuss the recent Minnesota Supreme
36 Court ruling regarding variances.
37
38 Assistant City Manager Moore-Sykes stated Commissioner Crone suggested the following
39 additional work session topics:
40 • Discussion with John Shardlow of Bonestroo.
41 • Breakdown of the current housing stock in the City.
42 • History of Apache Plaza and Silver Lake Village—phases of development.
43
44 Commissioners suggested the following additional work session topics:
45 • Discussion on the Comprehensive Plan.
Planning Commission Regular Meeting Minutes
January 18, 2011
Page 3
1 • Joint meeting with representatives of adjacent cities—Roseville, Columbia Heights, and
2 New Brighton.
3 • Discussion on the impact to site plans relative to surface water/storm water regulations.
4 • Discussion with representatives of the commercial brokerage leasing community in an
5 effort to be prepared for redevelopment of vacant properties in accordance with the
6 Comprehensive Plan/Zoning.
7
8 X. REPORTS FROM STAFF
9
10 X.I. GTS TRAINING SCHEDULE—MARCH - JUNE
11
12 Assistant City Manager Moore-Sykes reported that the GTS Training Schedule is not available
13 yet.
14
15 XI. COMMUNITY FORUM.
16
17 None.
18
19 XII. INFORMATION AND ANNOUNCEMENTS.
20
21 Assistant City Manager Moore-Sykes indicated that Commission members were provided with a
22 newspaper article regarding the retirement of Chairperson Bell from the Metropolitan Council.
23 Governor Dayton will be appointing a new Chair to the Metropolitan Council.
24
25 XIII. ADJOURNMENT.
26
27 Motion by Commissioner Chaput, second by Commissioner Cincoski, to adjourn the meeting at
28 7:22 p.m.
29
30 Motion carried unanimously.
31
32 Respectfully submitted,
33 Carol Hamer
34 TimeSaver Off Site Secretarial, Inc.
STAFF REPORT
To: Planning Commission
From: Kim Moore-Sykes,Assistant City Manager
Date: May 17, 2011
Subject: New Variance Law
On May 5, 2011, Gov. Dayton signed into law Chapter 19 of the 2011 Minnesota Laws which amends Minnesota
Statutes, section 462.357, subd. 6 to restore municipal variance authority in response to the Minnesota Supreme
Court's ruling in Krummenacherv. City of Minnetonka, 783 N.W.2d 721 (Minn June 24, 2010).
This amendment became effective on May 6, the day after the Governor signed the bill. The new law renames
the variance standard test of"undue hardship" to "practical difficulties" but otherwise retains the familiar three-
factor test of reasonableness,uniqueness,and essential character. Also included in the new law was this
additional sentence: "Variances shall only be permitted when they are in harmony with the general purposes and
intent of the ordinance and when the terms of the variance are consistent with the comprehensive plan."
The City Attorney and Staff are in the process of amending the City's Zoning Code on Variances to include the
new language of Chapter 19.
05172011 Var law Staff Report.doc
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Gov. Dayton Signs Variance Legislation into Law Page i of 2
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ES
Gov. Dayton Signs Variince
Legi'siation into Law
The changes,which are now in effect,may require some cities to change ordinances or statutory
cross-references.
(Published May 11, 2011)
The League and a long list of allies ars finally able to celebrate having a fix in place to restore city
variance authority.After a long and contentious session working on resolving this issue,the final version
of HF 52 was supported by the League and passed unanimously by the Legislature.
On May 5, Gov.Dayton signed 2011 Minnesota Laws, Chapter 19,amending Minnesota Statutes,
section 462.357,subdivision 6 to restore municipal variance authority in response to Krummenacher_v.
City of Minnetonka,783 N.W.2d 721 (Minn. June 24,2010).The law also provides consistent statutory
language between Minnesota Statutes,chapter 462 and the county variance authority of Minnesota
Statutes,section 394.27,subdivision 7.
In Krummenacher,the Minnesota Supreme Court narrowly interpreted the statutory definition of"undue
hardship"and held that the"reasonable use"prong of the"undue hardship"test is not whether the
proposed use is reasonable,but rather whether there is a reasonable use in the absence of the variance.
The new law changes that factor back to the"reasonable manner"understanding that had been used by
some lower courts prior to the Krummenacher ruling.
The new law was effective on May 6,the day following the governor's approval. Presumably it applies
to pending applications, as the general rule is that cities are to apply the law at the time of the-decision,
rather than at the time of application.
The new law renames the municipal variance standard from "undue hardship"to"practical difficulties,"
but otherwise retains the familiar three-factor test of(1) reasonableness,(2)uniqueness, and(3) essential
character. Also included is a sentence new to city variance authority that was already in the county
statutes: "Variances shall only be permitted when they are in harmony with the general purposes and
intent of the ordinance and when the terms of the variance are consistent with the comprehensive plan."
So in evaluating variance requests under the new law, cities should adopt findings addressing the
following questions:
. Is the variance in harmony with the purposes and intent of the ordinance?
. Is the variance consistent with the comprehensive plan?
. Does the proposal put property to use in a reasonable manner?
. Are there unique circumstances to the property not created by the landowner?
. Will the variance, if granted, alter the essential character of the locality?
Some cities may have ordinance provisions that codified the old statutory language, or that have their
own set of standards. For those cities, the question may be whether you have to first amend your zoning
code before processing variances under the new standard. A credible argument can be made that that the
statutory language pre-empts inconsistent local ordinance provisions. Under a pre-emption theory, cities
could apply the new law immediately without necessarily amending their ordinance first. In any regard,
it would be best practice for cities to revisit their ordinance provisions and consider adopting language
-/-c'a.{' Wu-�n V-s I—l�e Pitt-,)
littp://www.Ime.org/page/l/variancebill.jsp 5/12/2011
H.F. No. 52, 2nd Engrossment - 87th Legislative Session (2011-2012) Page 1 of 2
• Legislature Home I Links to the World I Help I Advanced Search
AIt „Minnesota=House,of 3Representatirres
House I Senate I Joint Departments and Commissions I Bill Search and Status I Statutes,Laws,and Rules
H.F.No.52,2nd Engrossment-87th Legislative Session(2011-2012) Posted on Apr 29, 2011
1.1 A bill for an act
1.2 relating to local government;providing for variances from city,county,and town
1.3 zoning controls and ordinances;amending Minnesota Statutes 2010,sections
1.4 394.27,subdivision 7;462.357,subdivision 6.
1.5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.6 Section 1.Minnesota Statutes 2010,section 394.27,subdivision 7,is amended to read:
1.7 Subd.7.Variances;hardship practical difficulties.The board of adjustment shall
1.8 have the exclusive power to order the issuance of variances from the terms requirements
1.9 of any official control including restrictions placed on nonconformities.Variances shall
1.10 only be permitted when they are in harmony with the general purposes and intent of the
1.11 official control
1.12 ,and when the-terrtts-ef
1.13 the val iartee variances are consistent with the comprehensive plan.
1.14
1.15
1.16
1.17 if
>mid Hie vitlimiee, gimited,
1.18 Variances may be granted when the applicant for the variance establishes that there
1.19 are practical difficulties in complying with the official control."Practical difficulties,"
1.20 as used in connection with the granting of a variance,means that the property owner
1.21 proposes to use the property in a reasonable manner not permitted by an official control;
1.22 the plight of the landowner is due to circumstances unique to the property not created by
1.23 the landowner,and the variance,ifrg anted,will not alter the essential character of the
1.24 locali .Economic considerations alone shall•do not constitute
2.1 ase fat the pi ovei ty exists mida Hie tei nis of die ot din u=practical difficulties.Practical
2.2 difficulties include,but are not limited to,inadequate access to direct sunlight for solar
2.3 energy systems.Variances shall be granted for earth sheltered construction as defined in
2.4 section 216C.06,subdivision 14,when in harmony with the official controls.No variance
2.5 may be granted that would allow any use that is prehibited not allowed in the zoning
2.6 district in which the subject property is located.The board of adjustment may impose
2.7 conditions in the granting of variances te.A condition must be directly related to and must
2.8 bear a rough proportionality to the impact created by the variance
2.9
2.10
2.11 EFFECTIVE DATE.This section is effective the day following final enactment.
2.12 Sec.2.Minnesota Statutes 2010,section 462.357,subdivision 6,is amended to read:
2.13 Subd.6.Appeals and adjustments.Appeals to the board of appeals and
2.14 adjustments may be taken by any affected person upon compliance with any reasonable
2.15 conditions imposed by the zoning ordinance.The board of appeals and adjustments has
2.16 the following powers with respect to the zoning ordinance:
2.17 (1)To hear and decide appeals where it is alleged that there is an error in any
2.18 order,requirement,decision,or determination made by an administrative officer in the
2.19 enforcement of the zoning ordinance.
2.20 (2)To hear requests for variances from the
https://www.revisor.mn.gov/bin/bldbill.php?bill=H0052.2.html&session=1s87 5/13/2011
H.F. No. 52, 2nd Engrossment - 87th Legislative Session (2011-2012) Page 2 of 2
'
2.23
2.24
2.25
,requirements of the zoning ordinance including
2.27 restrictions placed on nonconformities.Variances shall only be permitted when they are in
2.28 harmony with the general purposes and intent of the ordinance and when the variances are
2.29 consistent with the comprehensive plan.Variances may be granted when the applicant for
2.30 the variance establishes that there are practical difficulties in complying with the zoning
ordinance. "Practical difficulties,"as used in connection with the granting of a variance,
2.32 means that the property owner proposes to use the property in a reasonable manner not
2.33 permitted by the zoning ordinance,the plight of the landowner is due to circumstances
2.34 unique to the property not created by the landowner,;and the variance,if granted,will not
alter the essential character of the locality.Economic considerations alone sham do not
3.1 constitute
practical difficulties.Practical difficulties
3.3 include,but is are not limited to,inadequate access to direct sunlight for solar energy
3.4 systems.Variances shall be granted for earth sheltered construction as defined in section
216C.06,subdivision 14,when in harmony with the ordinance.The board of appeals and
adjustments or the governing body as the case may be,may not permit as a variance any
3.7 use that is not permitted allowed under the zAnin ordinance for property in the zone
3.8 where the affected person's land is located.The board or governing body as the case
3.9 may be,may permit as a variance the temporary use of a one family dwelling as a two
3.10 family dwelling.The board or governing body as the case may be may impose conditions
3.11 in the granting of variances limiee mid to pmteet adjaeent Floperfits-..A
3.12 condition must be directly related to and must bear a rough proportionality to the impact
3.13 created by the variance.
3.14 EFFECTIVE DATE.This section is effective the day following final enactment.
Please direct all comments concerning issues or legislation
to your House Member or State Senator.
For Legislative Staff or for directions to the Capitol,visit the Contact Us page.
General questions or comments.
last updated 04/15/2009
vi ov/bin/bldbill. h ?bill=HO052.2.html&session=1s87 5/13/2011
h s://www.re sor.mn
ttP g P P
I
O O
LEAGUE of CONNECTING & INNOVATING
MINNESOTA SINCE 1913
CITIES
VARIANCES
Frequently Asked Questions
What is a variance?
A variance is a way that a city may allow an exception to part of a zoning ordinance. It is a
permitted departure from strict enforcement of the ordinance as applied to a particular piece of
property. A variance is generally for a dimensional standard (such as setbacks or height limits). A
variance allows the landowner to break a dimensional zoning rule that would otherwise apply.
Who grants a variance?
Minnesota law provides that requests for variances are heard by a body called the board of
adjustment and appeals; in many smaller communities, the planning commission or even the city
council may serve that function. A variance decision is generally appealable to the city council.
For more information, see Minn. Stat. & 462.357.
When can a variance be granted?
A variance may be granted if strict enforcement of the zoning ordinance as applied to a particular
piece of property would cause the landowner"undue hardship." For the variance to be granted,the
applicant must satisfy the statutory three-factor test for undue hardship. If the applicant does not
meet all three factors of the statutory test, then a variance should not be granted. For more
information, see Minn. Stat. § 462.357.
What kind of authority is the city exercising?
A city exercises so-called "quasi-judicial"authority when considering a variance application. This
means that the city's role is limited to applying the legal standard of undue hardship to the facts
presented by the application. The city acts like a judge in evaluating the facts against the legal
standard. If the applicant meets the standard,then the variance should be granted. In contrast,
when the city writes the rules in zoning ordinance, the city is exercising"legislative"authority and
has much broader discretion.
What is undue hardship?
Undue hardship is a legal standard set forth in law that cities must apply the when considering
applications for variances. It is a three-factor test and applies to all requests for variances. To
constitute undue hardship,all three factors of the test must be satisfied. For more information, see
Minn. Stat. & 462.357.
This material Is provided as general Information and Is not a substitute for legal advice.
Consult your attorney for advice concerning specific situations
C
LEAGUE OF MINNESOTA CITIES 145 UNIVERSITY AVE.WEST PHONE-(651)281-1200 FAx(651)281-1298
INSURANCE TRUST ST.PAUL.MN 55103-2044 TOLL FREE:(800)925-1122 WEB:WWWLMC.ORG
Administrative Track-2011
Variances:Very Variable?Verifying Variance Variety in the Vernacular-63
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What are the undue hardship factors?
The first factor is that the property cannot be put to a reasonable use without the variance.
Caution! In June 2010, the Minnesota Supreme Court issued a decision that changed the
longstanding interpretation of the first factor. The Court held that the reasonable use factor is not
whether-the proposed use is reasonable, but rather whether there is reasonable use in the absence
of the variance. This is a much stricter test, which considerably limits variance opportunities. A
city will need to work closely with the city attorney to determine if a variance application can
satisfy the first factor.
The second factor is that the landowner's problem is due to circumstances unique to the property
not caused by the landowner. The uniqueness generally relates to the physical characteristics of
the particular piece of property,that is,to the land, and not personal characteristics or preferences
of the landowner. When considering the variance for a building to encroach or intrude into a
setback, the focus of this factor is whether there is anything physically unique about the particular
piece of property, such as sloping topography or other natural features like wetlands or trees.
The third factor is that the variance, if granted, will not alter the essential character of the locality.
Under this factor consider whether the resulting structure will be out of scale, out of place, or
otherwise inconsistent.with the surrounding area. For example, when thinking about the variance
for an encroachment into a setback,the focus is how the particular building will look closer to a lot
line and if that fits in with the character of the area.
What about economic considerations?
Sometimes landowners insist that they deserve a variance because they have already incurred
substantial costs or argue they will not receive expected revenue without the variance. State 1
statute specifically notes that economic considerations alone cannot create an undue hardship.
Rather, an undue hardship exists only when the three statutory factors are met.
Can a city grant a use variance?
Sometimes a landowner will seek a variance to allow a particular use of their property that would
otherwise not be permissible under the zoning ordinance. Such variances are often termed "use
variances"as opposed to"area variances"from dimensional standards.: Use variances are not
generally allowed in Minnesota—state law prohibits a city from permitting by variance any use
that is not permitted under the ordinance for the zoning district where the property is located.For
more information, see Minn. Stat. 4 462.357.
Is a public hearing required?
Minnesota statute does not clearly require a public hearing before a variance is granted or denied,
but many practitioners and attorneys agree that the best practice is to hold public hearings on all
variance requests. A public hearing allows the-city to establish a record and elicit facts to help
determine if the application meets the undue hardship factors.
What is the role of neighborhood opinion?
Neighborhood opinion alone is not a valid basis for granting or denying a variance request. While
city officials may feel their decision should reflect the overall will of the residents,the task in
considering a variance request is limited to evaluating how the variance application meets the
2
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Variances:Very Variable?Verifying Variance Variety in the Vernacular-64
I
statutory undue hardship factors. Residents can often provide important facts that may help the
city in addressing these factors, but unsubstantiated opinions and reactions to a request do not form
a legitimate basis for a variance decision. If neighborhood opinion is a significant basis for the
variance decision, the decision could be overturned by a court.
What is the role of past practice?
While past practice may be instructive, it cannot replace the need for analysis of al l three of the
undue hardship factors for each and every variance request. In evaluating a variance request, cities
are not generally bound by decisions made for prior variance requests. If a city finds that it is
issuing many variances to a particular zoning standard, the city should consider the possibility of
amending the ordinance to change the standard.
When should a variance decision be made?
A written request for a variance is subject to Minnesota's 60-day rule and must be approved or
denied within 60 days of the time it is submitted to the city. A city may extend the time period for
an additional 60 days, but only if it does so in writing before expiration of the initial 60-day period.
Under the 60-day rule, failure to approve or deny a request within the statutory time period is
deemed an approval. For more information, see Minn. Stat. § 15.99.
How should a city document a variance decision?
Whatever the decision, a city should create a record that will support it. In the case of a variance
denial,the 60-day rule requires that the reasons for the denial be put in writing. Even when the
variance is approved, the city should create or direct that a written statement explaining the
decision. The written statement should explain the variance decision, address each of the three
undue hardship factors and list the relevant facts and conclusions as to each factor.
Can meeting minutes adequately document a variance decision?
If a variance in denied,the 60-day rule requires a written statement of the reasons for denial be
provided to the applicant within the statutory time period. While meeting minutes may document
the reasons for denial, usually a separate written statement will need to be provided to the
applicant in order to meet the statutory deadline. A separate written statement is advisable even
for a variance approval,although meeting minutes could serve as adequate documentation,
provided they include detail about the decision factors and not just a record indicating an approval
motion passed.
Can a city attach conditions to a variance?
By law, a city may impose conditions when it grants variances to insure compliance and to
protect adjacent properties. Any such conditions should relate back to the subject of the
variance request. For instance, if a variance is granted to exceed an otherwise applicable
height limit, any conditions attached should presumably relate to mitigating the affect of
excess height. For more information, see Minn. Stat. S 462.357.
What happens to the variance once granted?
A variance once issued is a property right that"runs with the land" so it attaches to and benefits
the land and is not limited to a particular landowner. A variance is typically filed with the county
recorder. Even if the property is sold to another person,the variance applies.
3
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Variances:Very Variable?Verifying Variance Variety in the Vernacular-65
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Variances:Very Variable?Verifying Variance Variety in the Vemacular-66
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
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
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Variances:Very Variable?Verifying Variance Variety in the Vemacular-68
ST V
REPORT
'1"t7. Micll�el J,MOUVW4,City Umna
Mayor mid-City CoundR
MO.M wSykM As ttt City Mgiager
?date: _ y 2
Subject An Amendment to'ZoningOrd�e 1,ra142 UgM h-dustrial District-Permitted Conditional
Uses
At the April 4,2011 City Council work sessim Staff prennted the attached Ordinance 2011-002 to the City
requesting to amend the City's.Zoning Ordinance 152.142,Lj&IUhAptd4 Diftt Permitted Conditlon:el
QqS&to return to the Zonh> g Ordhmnee subdivisions{h) Assembly,meeting longe,or convention hd9s;
axed Catering opaadons,cafeterias and delicatessens. As Staffexplained at the April work session,
these two subsectiams wear fnadvertently WWed during the reW.riUng of the Zoning QDtde by the publisher.
Conseginently,the Zm tig Code was adopted by the City Coursed unittfieritionaIly removing the
aforemendctited subdiv9sfonAl
Daring this review of Ordinance 2011-04 Coursed asked Staff about the ori&of cunrent subdivision(H)
Of§152.142(1993 Code,91640.03(g)) . Staff determined that the addition of subdivision{H)was proposed
by a St. Anthony businessman and resident in 1987. He owned the mini-storage business at the time
located at 3829 Voss Road and indicated that for security reasons,he was requesting a change in the
Ordinance tp have the caretaker live on site.
In reviewing the property file for 3829 Foss Read,staff found Planning Commission minutes for July
15,1980,whereby Mr. Bernard Blanske,.the fitst owner and developer of the mini storage that was being
comstr+acbed at timate,advised the'Planniug Comu*sion that one unit of the ministorege would be used as an
office for himself and the other would be used either for a rental office space or caretaker's residence to
provide supervision and security for the area. He was apparently allowed to construct these two units
without Council's approval.
In October 1987,Ken Solie,who was by then an owner in the mindstorage petitioned the City Council to
amend the Ordinance,then §1640.03,to allow for dwelling unfits of not more than 600SF. Staff was not able
to determine when the Ordinance was amended to allow for an 11,650SF residential unit but may have been
changed as the result of the 1993 recodification of the Code of Ordinances.
Staff also searched ordinances of the surrounding communities of Columbia Heights,Fridley,and Roseville
and found that these communities allow caretaker units in the Industrial Zoning District either as a
permitted use for an accessory building or as a conditional use.
Attachments:
1. Ordinance 2011-002
2. July 15, 1980 Planning Commission Minutes
3. Ordinance 1987-004
4. October 30, 1987 Letter to Village Properties from City Manager David Childs
5. Various City Codes regarding caretaker's unit.
F\Staff Reports\2011\0502201 Iws Zoning ordinance amendment stf rpt doc05O2201 1 ws Zoning ordinance amendment stf rpt doc
r 2
CITY OF ST.-ANTHONY VHJ i(;E
ORDINANCE 2011402,
AN AMMMENT TO ZONING ORDINANCE 152.142 LIGHT'DMUSTRIAL
DISTRICT PER TIED CONDTI ONAL USES
The text amendment would read as follows:
15 .142-Fermitted Cnndif Mo IIses.
(g)Not more than two dwelling units of not more than 11,630 squaie Beet-eagk having
no more than one bedroom each,for use as rosi(6m for ccarotakm for a mini-
Wuehouse Wility. No such dwelling unit may be occupied by.a person other than a
bona fide caretaker of a mini-warehouse fhcility and the caretaker's spouse and
dependent children. FQr purposes of this paragraph,the term"u)iui-vv=ho1J$e„
means a building or buildings designed and intended for warehouse use by three or
more different tenants.
(h) Assembly,meeting lodge,or convention halls.
(i) Catering operations,cafeterias and delicatessens.
0) Daycare Center,without drive�through faeflities.
In the City Ordinance Chapter 31.06,it states that rezonings or other zoning ordinance
amendments shall require only one reading.
Adopted this day of , 2011.
Mayor
Attest:
City Clerk
Publication in St. Anthony Bulletin:
®d f r(ft 7 s So M to wivi Oftp At Bir
to d Ca :d i m e��� -: > s
9--to-" Piave the "rev s i at= thee:
gxoggsed. � �i f nve iri' hands ftvr- -avdniij� et3pY►'c ui�lssic the
neis`t C"o�nm�;s��idn'meeting: .-. _ .. _ .
The"Chairman 4istrj� his dopy o a ett+�r from AY�e "Rosenthal
S,4ggestirig ,sail 00166dor the proposed City .00 16 T.4.' system, should
be placed underg.muhd,.
Mr. American Monarch and National Bank of
St. Anthony are substantially in conformance with their landscaping
plans but several commission members expressed concern that the
buahes provided by. the bank along Lowry Avenue may not actually
provide the, opacity which wan agreed tq 14 feet in' 3 years) and
whether the woad CRiO foUnd&tions are being kept weed free. Staff
will contact the bank to ascertain what fiiml .landscaping can be,
anticipated for the auxiliary parking lot.
The public hearing on the Blanske variance petition for a mini
storage construction at 39th Avenue N.B. and Foss toad, which had been
continued because of qud6tions vaised regarding the notification
procedures, was reopened by Chairman Bjorklund at 8:18 P.M. All
property owners of record within 200feet of the Blanske property have
been -notified'' of the hearing continuance, Mr. Berg reported. He
said he had received a letter from Russell A. Teske, who recently
moved -to California, who 'comp,lained of never receiving Such notices
from the City, specifically the water-_ billings. Mr. Berg, however,
had checked and found the.property owner of record for 3821 Foss
Road was being sent all such notices at that address. Included in
the July 15th agenda were copies of the July 10th memorandum from
Mr. Berg and Mr: Hamer as well as Mr. Berg's original assessment of
the proposal dated June 13th and* Mr. Slanske`s, variance appli.Cati,on.
The developer and his attorney, Ed Hance, reiterated their justifications
for allowing a mini storage facility on the property Mr. Blanske
owns at approximately 3829 Foss` Road provided the City vacates the
southern portion of Sunset Lane as recommended by the Commission
�- June 17th. Mr. Blanske indicated, on the site plans , where he would
be able to stripe seven or eight parking stalls parallel to Sunset
Lane which he saw as more than adequate since only his own vehicles
and perhaps that of a caretaker resident in the facility will be
allowed to park on the siteIR
.
and the
e also ou ine a u'se o cons ruction
ma e °s e children from climbing on the roof of the
building.
Doug Jones arrived at 8 : 35 P .M.
The Pz�esidgkit.•$nd Traa~eur6s of t74e• Mirror Lade btuox.,homeowners
:ori k .Re s o lits.-4i:d'al*iAa• Last w c ;ands €eci they -are
�Aok�sg�ar o at- Milxor•, e� : a�:d they -U46
he Aa tQ4•' �': the ase6bigttion- boird ths . y$oug('waning to
e esis that ro �s a•. royal. 't*f the r'i� osa-. .as. it lied" 'beet resented
. .g .� . PP. P . P .. P
to theme • lam.- Slarnaka. Th8 board hacl eapecial.ly bean glassed with
the provision, •of landsdapin# which the saw ai an improvement of the
P yy
e4sting-condition,of-. the�p;o erty,, T1ia asaoci,atiori hkd also felt
that the mini si% tN's
facilitiek migIA fulfill the needof• .Dome
Mirror Lake residaforiliary stor e s o e:.
vac age Pac
The heaving was dlosed at 5,48 P.M.-
Motion
.M.Motion by Mr. soprinski and seconded by tars.. Makowske to redommend
Council apvroval of-. the vtiriancee necessary for the'development of. a .
mirii storage faeili.ty, as proposed by Bernard Blansk6,- with no heat-
ing and plumbing (except for office spade) as per survey certificate
No. 5332 for Lot 20 , Block- i.2, Mounds- View Acres Second Addition
subject toy
(a) Council approval of the vacation of the southerly half of Sunset
Lane for the project,
(b) A developer's agreement from Mr. Blanske assuring construction
to the City's specifications of a road and sidewalk along the
porrtion .df Sunset Lane',,hich remains after the vacation,
(o) Provision of marked parking for any or all office spaces (max-
imum of two offices) which meet the Requirements of the City
ordinance, and
('d) submission of landscaping plans detailing those indicated on his
proposal, which meet the approval off` City staff,
The vari.anpes recommended by the commission are:
(1) A variance of 7 feet for front yard setback (Sunset Lane) .
r (2) A variance of 12 feet for a side ya:zd setback (Foss Road) .
(3) parking space variance of 31 stalls , resulting in a provision
for 3 stalls .
The Planning Commission bases this recommendation in consideration of
the following:
(a) The side yard variance is reasonable in that it conforms to the
average setback of adjacent properties .
(b) The City requirements in regard to parking spaces would be
considered a hardship as the standards required do not pertain
'. , to the mini storage portion of this project .
CITY OF ST. AMTHONY
ORDINANCE 1987-004 '
AN ORDINANCE RELATING TO CONDITIONAL USES IN THE
LIGHT INDUSTRIAL ZONING CLASSIFICATION, AMENDING
SECTION 10{ SUBDIVIsioN 31 ITEM 71
OF APPENDIX I OF THE 1973 CGDE OF ORDINANCES
The City Council of the City of St. Anthony hereby ordainsr
Section 1. Section 10 , Subdivision 3, Item 7, of
Appendix I of the 1973 Code of Ordinances is amended to
�- read as follower
7. Two dwelling units of not more than 600 square feet
and one bedroom each for use as residences for
caretakers for a mini-warehouse facility. No such
dwelling unit shall be occupied by a person other
than a bona fide caretaker of a mini.-warehouse
facility and the caretaker' s spouse and dependent
children. For purposes of this sub-section the term
"mini-warehouse" shall mean a building or buildings
deelc1ned _and intended for warehouse use by three or
more different tenants.
section Z. This Ordinance shall be effective as of its
date of publication.
First reading: October 13, 1987
Second reading:
Adopted:
Mayor
ATTEST:
City Clerk
Publish: St. Anthony Bulletin on the day of
1987 .
i
Admtntat�aNus 41�Eea
3301 Silver]Lake Roa4 StAm bor4& Minnesota 65418 .
(612)789.8881
tober 30, 1989
llage Properties
b Keh• solie . -
16 Pentagon Drive N.B.
Anthony, .MN 55418
#r Mr. solie;
you may be aware, the City Counc11 has approved the
ning'-change recgarding oaret;aker units in a mini-warehouse
ility you had requested,
E next step in the process -is for the enclosed Conditional
Permit to be completed and the $100 fee paid. If you
sh the permit. to be presented at the Planning Commission' s '
"-ember '15, 3.987- meeting, please return the ,application -
a detailed desc�riptibn of your request, aifd the fee by
:ember 20 , 1997.
hderely,
.,T 'd M. Childs
Manager
1
�cik ,
osure
r� I
_ Robert(Bob) Sundland, Mayor David Childs, City Manager
Councllmembers. Richard A Enrooth,Judy Makowske, George Marks Clarence Ranallo
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LEAGUE of CONNECTING & INNOVATING
MINNESOTA SINCE 1913
CITIES
RISK MANAGEMENT INFORMATION
PLANNING & ZONING 101
This memo reviews the basics of why and how cities engage in land use planning and regulation,
and why local officials should take time to carefully and conscientiously create land use laws.
Land Use Regulation
City governments provide many important services, but one function stands apart in its impact on
future generations—the authority to engage in planning and zoning of the community.
Comprehensive plans and zoning ordinances adopted and enforced by current officials affect the
future layout and landscape of a city for many years to come. Whether it is the development or
preservation of open space,or the redevelopment and revival of existing properties, what a
community will look like dozens of years from now depends on decisions made today.
City planning and zoning took root in the early 20`h century as a way to minimize conflicts
between incompatible land uses and to plan more coherent development. People increasingly were
living in built-up urbanized areas, and were suffering health impacts, included reduced life span,
related to density and industrialization. In order to promote better health, safety and welfare, cities
began regulating the use, size and location of structures on the land through zoning ordinances,
and developing future plans for harmonious and healthy land use patterns.
Conflicts and Lawsuits
People tend to feel strongly about land use in most communities,and it often goes both ways.
Private property owners may feel they should be able to use their land as they see fit, without
government telling them what they can and cannot do, and where they can and cannot build.
On the other hand, residents may feel equally strongly about what others are doing nearby, to the
extent that it may injure or disturb the peace and quiet of their neighborhood—hardly anyone
wants to live next door to a major industrial operation for example.
Conflicts often lead to litigation, and land use regulation
is no different. It was through litigation that the U.S. More Information
Supreme Court first upheld the constitutionality of Learn more about LMCIT defense
zoning in the seminal 1926 decision, Euclid v. Ambler.
And lawsuits continue to this day. The League of in:
Minnesota Cities Insurance Trust (LMCIT)provides a Land Use litigation Coverage
unique land use insurance coverage that defends cities in
land use lawsuits even when there is not a claim for
damages. LMCIT members spend almost $3 million a year defending these lawsuits.
This material Is provided as general Information and is not a substitute for legal advice.
Consult your attorney for advice concerning specific situations.
LEAGUE OF MINNESOTA CITIES 145 UNIVERSITY AVE WEST PHONE (651)281-1200 FAx (651)281-1298
INSURANCE TRUST ST-PAUL,MN 55103-2044 TOLL FREE (800)925-1122 WEB WWWLMCORG
Small Cities Track-2011
Planning&Zoning 101-9
Making versus Applying Law
Land use litigation is costly, and often puts city officials in the difficult position of dealing with
controversies that may displease people,no matter the outcome. City officials can help themselves
through these controversies by educating themselves about land use regulation authority, and the
process and procedures necessary to exercise it. An important consideration is how much authority
the city has over any given land use decision. A city has much broader authority when creating its
land use plans and ordinances than it does when administering the same. Consequently, it is
important for a city official to be aware of what authority the city is acting under whenever making
a particular decision.
When creating, adopting and amending
land use plans and zoning ordinances, a
city is making law by exercising so-called
"legislative" authority. The council sits as
a body of elected representatives to make
plans and laws (ordinances) for the entire ,
community to advance health, safety, and `r rt�tics '
welfare. When acting legislatively, the
council has broad discretion and will be
afforded considerable deference by any
reviewing court. In contrast, when so
applying existing plans and laws, a city
council is exercising so-called"quasi-
judicial" authority. The limited task is to
determine the facts associated with a
particular request, and then apply those
facts to the relevant law. A city council Pyramid of Discretion:Cities have greater discretion
when making land use decisions at the base of this
has less discretion when acting quasi- triangle,and less as decision-making moves up the
judicially, and a reviewing court will pyramid. Discretion is greatest when officials are creating
examine whether the city council applied local laws,and the least when officials are administering
rules already in place to the facts before it. those laws.
Land use disputes tend to arise most often when a city is applying laws, rather than when making
law. But a city usually has less ability to address the root of the dispute when applying the law,
than it would when making the law in the first instance. When acting legislatively, a city council
can engage in far-ranging policy discussion, and sort through competing views about what plans
and laws would be in the best interest of the city. Although not everyone may be on board with the
outcome, the more public participation in the law-making stage, the better the understanding
among the public of why the city has a particular plan or law in place.
The Comprehensive Plan
A comprehensive plan is document that sets forth a vision and the goals for the future of the city.
The purpose is to guide future development of land to ensure a safe, pleasant, and economical
environment for residential, commercial, industrial, and public activities.
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Small Cities Track-2011
Planning&Zoning 101—10
The comprehensive plan provides the overall foundation for all land use regulation in city. State
law encourages all cities to prepare and implement a comprehensive municipal plan. In addition,
cities within the seven-county metro area are required to adopt comprehensive plans. Under state
law, a city planning commission or department is tasked with the creation of the city's_
comprehensive plan.
Planning is a professional field'that encompasses a broad
array of skills and techniques. In developing More Information
comprehensive plans, many cities use educated, certified Learn more about planning
land use professionals. But at its core, planning is a commissions in:
relatively straightforward three-step process: . Planning Commission Guide
• First, a community takes stock of where it is
today.
• Second, the community generates a shared vision and goals for what the city will be like in
the future.
• Third, but certainly not least, the city develops a set of specific strategies to achieve that
vision over time.
There are many reasons cities create and adopt comprehensive plans. The planning process helps
communities identify issues before they arise, stay ahead of trends in land use development and
redevelopment, and anticipate and navigate change in populations and land use patterns.
A comprehensive plan also protects and makes the most out of public investment by ensuring that
development coincides with investments in infrastructure. A comprehensive plan protects and
promotes the value of private property. Finally, a comprehensive plan provides legal justification
for a community's land-use decisions and ordinances.
The comprehensive plan itself can contain many Definition
different elements, and importantly, is not limited in
scope to land use. State law defines a comprehensive
plan as a compilation of policies,
The land use plan lays out desired timing, location, goals, standards and maps for
design and density for future development, guiding the physical, social and
redevelopment, or preservation. economic development, both public
and private, of the municipality and
In addition to a specific land use plan, comprehensive its environment.
plans typically include plans for:
• Public or community facilities,
• Parks and open space,
• Housing,
• Natural resources,
• Transportation, and
• Infrastructure.
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Small Cities Track-2011
Planning&Zoning 101—1 1
Most comprehensive plans include a variety of maps, including a land use plan map that indicates
how the plan guides the future land use in different areas of the community.
State law provides certain processes that cities must follow for comprehensive plan adoption and
amendment. Prior to adoption of a comprehensive plan, the planning commission must hold at
--least one public hearing. A notice of the time, place, and purpose of the hearing must be published
once in the official newspaper of the municipality, and at least 10 days before the day of the
hearing. Unless otherwise provided in a city charter,the city council may, by resolution by a two-
thirds vote of all of its members, adopt and amend the comprehensive plan or a portion of the plan.
This means that on a five-member council, the comprehensive plan must receive at least four
affirmative votes.
After a city has adopted a comprehensive plan, all future amendments to the plan must be referred
to the planning commission for review and comment. No plan amendment may be acted upon by
the city council until it has received the recommendation of the planning commission, or until 60
days have elapsed from the date an amendment proposed by the city council has been submitted to
the planning commission for its recommendation. In submitting review and comment to council,
the planning commission serves in a strictly advisory role. The city council ultimately decides on
the acceptance, rejection or the revision of the plan, and is not bound by planning commission
recommendations.
Cities in the seven-county metropolitan area must Something to Think About
submit their comprehensive plan to the Metropolitan
Council for review of its compatibility and conformity When the Metropolitan Council
with the Council's regional system plans. Cities within determines that a city's
the seven-county metro area must review and update comprehensive land use plan may
their plan, fiscal devices, and official controls at least have a substantial impact on, or
every 10 years, and submit their revised plans to the contain a substantial departure
Metropolitan Council for review. from the Metropolitan Council's
regional system plans, the Council
Adopting and amending a comprehensive plan should has the statutory authority to
be a dynamic public process with an eye towards require the city to conform to the
implementation. Public participation ensures broad Council's system plans.
and ongoing support, brings a variety of information
and perspectives, and instills a sense of community ownership in the plan. Once adopted, the city
should actively consult the plan, periodically review it for consistency with current policies and
practices, and recommend amendments whenever necessary. State law provides that
comprehensive plans should be implemented through zoning and subdivision regulations, as well
as coordination of public improvements & city services, and a capital improvements program.
The Zoning Ordinance
State law authorizes a city zoning ordinance as a tool to Learn More
implement a comprehensive plan. Zoning is a method Read more about zoning decisions in:
of establishing a land use pattern by regulating the way
land is used by landowners. A zoning ordinance has • Zoning Guide for Cities
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Small Cities Track-2011
Planning&Zoning 101-12
area standards that regulate the size and location of buildings and structures in the city. Comprised
of text and a map, most zoning ordinances also typically divide a city into various zoning districts,
and set standards regulating uses in each district.
"Area standards" are rules that constrain the size and location of building and other structures.
These typically include rules about building location and size, including height, width and bulk;
and the percentage of lot space that may be occupied, and required yards or open spaces. Other
standards might be performance standards such as related to density,parking or lighting.
Most zoning ordinances use a map to divide the community into zoning districts that establish
similar compatible land uses. By creating zoning districts that separate uses, the city assures that
adequate space is provide for each and that transition areas of buffers exist between distinct and
incompatible uses. Examples may include, but are not limited to residential, commercial, industrial
and agricultural. Larger cites will often have districts of varying density or intensity, such as
single-family residential and multi-family residential, or light industrial and heavy industrial.
For each district, a zoning ordinance typically sets forth uses that are allowed in each district and
the performance standards that must be met. The allowed uses often are set forth in lists or use
tables. Allowed uses typically include permitted uses, accessory uses and conditional uses.
• A permitted use is generally the principal use of the land or building, and is allowed
without a public a hearing.
• An accessory use is an allowed use located on the same lot, subordinate or accessory to
permitted use.
• A conditional use is a use that is allowed after a public hearing only if the landowner meets
the general and specific standards as set forth in the zoning ordinance. The more specific
and clear the standards set forth in the ordinance, the easier it will be to administer.
State law mandates a procedure for the adoption or amendment of zoning ordinances. The process
includes:
1. A public hearing must be held by the council or the planning commission (if one exists)
before the city adopts or amends a zoning ordinance.
2. A notice of the time, place and purpose of the hearing must be published in the official
newspaper of the municipality at least 10 days prior to the day of the hearing. In addition, if
an amendment to a zoning ordinance involves changes in district boundaries affecting an
area of five acres or less, a similar notice must be mailed at least 10 days before the day of
the hearing to each owner of affected property and property situated completely or partly
within 350 feet of the property to which the amendment applies.
3. Zoning ordinances must be adopted by a majority vote of all of the members of the council.
An important component of the zoning ordinance is the zoning ordinance map which assigns
zoning districts to given parcels in the community. When the city changes the zoning district
designation of a parcel from one zoning district to another, the process is termed rezoning, and
must be done after a public hearing. Rezoning is an amendment to the actual zoning ordinance and
the procedures for amendments to the zoning ordinance apply.
State law, however, has a two-tiered voting requirement for rezoning of residential property. When
property is rezoned from residential to commercial or industrial, a two-thirds majority of all
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Small Cities Track-2011
Planning&Zoning 101-13
members of the city council is required. For other rezoning decisions, a simple majority vote of all
members is all that is required. Rezoning should be consistent with the-comprehensive plan land.
use plan map.
Conclusion
Planning and zoning a community is a substantial undertaking that deserves thoughtful
consideration. The more effort a city puts in at the front end by in adopting and amending plans
and ordinances,the easier it will be to administer. Plans and ordinances adopted years ago may not
be consistent with current vision,particularly in an economic downturn. A capital improvement
program, in particular, should be regularly revisited for consistency with current conditions.
Keeping city plans and ordinances current can save money and headaches. Whether disagreements
about the vision for future of city, or disputes between neighboring property owners, land use
conflicts eventually confront'most city officials. In creating comprehensive plans and adopting
zoning ordinances, cities can proactively engage the public to create grounds rules for all.
Jed Burkett 03/11
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Small Cities Track-2011
Planning&Zoning 101-14
LEAGUE of CONNECTING &INNOVATING
MINNESOTA SINCE 1913
CITIES
CONDITIONAL USE PERMITS
Frequently Asked Questions
What is a conditional use?
A conditional use is a land use designated in a zoning ordinance that is specifically allowed in,a
zoning district so long as certain standards are met. The zoning ordinance typically detail both
general standards that apply to all conditional uses, as well as specific standards that apply to a
particular conditional use in a given zoning district.
Why are some uses typically designated as conditional?
A use is typically designated in a zoning ordinance as conditional because of hazards inherent in
the use itself or because of special problems that its proposed location may present. For example,
uses that generate traffic such as family childcare, service stations, convenience stores,or drive-
thrus are often designated as conditional uses.
What is a conditional use permit(CUP)?
A conditional use permit is a document a city issues to grant a conditional use when the general
and specific ordinance standards have been met by the applicant. The use is allowed by permit
only if the special concerns are addressed as set forth in the zoning ordinance. Conditional use
permits are authorized under Minn. Stat. & 462.3595.
For what uses can a CUP be granted?
Generally CUPs are granted only for uses specifically listed in the zoning ordinance as conditional
uses in a particular zoning district. If a use is not designated as a conditional use in a zoning
district, then arguably the city has no ability to issue a CUP without first amending the zoning
ordinance to provide for the conditional use. This would of course allow other applicants to apply
for a conditional use permit under the same standards.
What are general CUP standards?
A zoning ordinance will typically detail general standards that apply to all conditional uses. For
example, some zoning ordinances provide that all conditional uses must conform to the
comprehensive land use plan of the community, be compatible with the adjoining properties, and
be served by adequate roads and public utilities.
What are specific CUP standards?
In addition to general CUP standards, many zoning ordinances will detail specific standards that
apply to a particular conditional use, such as those made for businesses operating a drive-thru.
Conditions for such uses may include specific standards regarding things like off-street parking
and loading areas, landscaping and site plan, and hours of business operation.
This material is provided as general information and:snot a substitute for legal advice.
Consult your attorney for advice concerning specific situations.
1
LEAGUE OF MINNESOTA CITIES 145 UNIVERSITY AVE WEST PHONE.(651)281-1200 rAx.(651)281-1298
INSURANCE TRUST ST PAUL MN 55103-2044 TOLL FREE:(800)925-1122 WEB WWW LMC ORG
Small Cities Track-2011
Planning&Zoning 101-15
Who grants the CUP?
A CUP is typically approved by the city council. Planning commissions often first consider the
CUP application and make recommendations to the city council. State statute allows the city
council to designate its CUP approval to another authority,and some cities have designated the
planning commission as the approving body. In any event,the city council is generally makes the
final decision on CUPs.
When can a CUP be granted?
If a proposed conditional use satisfies both the general and specific standards set forth in the
zoning ordinance,the applicant is entitled to the conditional use permit. Importantly, if the
applicant meets the general and specific ordinance standards, the city usually has no legal basis
for denying the CUP.
What kind of authority is the city exercising?
A city exercises so-called"quasi-judicial" authority when considering a CUP application. This
means that the city's role is limited to applying the standards in the ordinance to the facts
presented by the application. The city acts like a judge in evaluating the facts against the
standards. If the applicant meets the standards,then the CUP should be granted. In contrast, when
the city in zoning ordinance designates certain uses as conditional, the city is exercising
"legislative"authority and has much broader discretion.
What is the public hearing requirement?
A proposed conditional use is allowed only after a statutorily required public hearing. The city
must provide published notice of the time, place, and purpose of the hearing on a proposed CUP at
least 10 days prior to the day of the hearing. If the decision affects an area of five acres or less, the
city may need to mail notice to property owners within a 350-foot radius of the land in question.
The purpose of the public hearing is to help develop a factual record as to whether the applicant
meets the relevant ordinance standards such that the CUP should be granted.
What is the role of neighborhood opinion?
Neighborhood opinion alone is not a valid basis for granting or denying a CUP. While city
officials may feel their decision should reflect the overall preferences of residents, their task is
limited to evaluating how the CUP application meets the ordinance standards. Residents can often
provide important facts to help the city address whether the application meets the standards, but
unsubstantiated opinions and reactions to an application do not form a legitimate basis for a CUP
decision. If neighborhood opinion serves as the sole basis of the decision, it could be overturned
by a court if challenged.
When should a CUP decision be made?
A written request for a CUP is subject to Minnesota's 60-day rule (state statute section 15.99), and
must be approved or denied within 60 days of the time it is submitted to the city. A city may
extend the time period for an additional 60 days, but only if it does so in writing before expiration
of the initial 60-day period. Under the 60-day rule, failure to approve or deny a request within the
statutory time period is considered an approval.
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Small Cities Track-2011
Planning&Zoning 101—16
How should the CUP decision be documented?
Whatever the decision, a city should create a record that will support it. If a city denies a CUP
application, the 60-day rule requires the reasons for the denial be put in writing. Even if a city
approves a CUP,a written statement explaining the decision is advisable. The written statement
explaining the decision should address the general and specific ordinance standards, and explain
the relevant facts and conclusions.
What conditions can a city attach to a CUP?
Reasonable conditions relating to the ordinance standards may be attached to a CUP based upon
factual evidence contained in public record. For example, if a zoning ordinance provides that a
conditional use should not have adverse visual or noise impacts on any adjacent property, a city
might require specific screening and landscaping conditions to address any potential impacts
established in the record.
Can a city put an expiration date on a CUP?
State statute provides that a CUP remains in effect as long as the conditions agreed upon are
observed. The attorney general has found that time limits such as sunset provisions or automatic
annual review are not consistent with state law, explaining that cities may not enact or enforce
provisions that allow a city to terminate CUPS without regard to whether or not the conditions
agreed upon are observed.
What if the city wants put a time limit on a land use?
If a city wishes to place time constraints on particular uses,then the appropriate zoning tool is an
interim use permit, rather than a conditional use permit. Passed in 1989,Minn. Stat. -&462.3597
authorizes interim use permits for a temporary use of property until a particular date, until the
�. occurrence of a particular event, or until zoning regulations no longer permit it.
What happens to the CUP once granted?
A conditional use permit is a property right that"runs with the land" so it attaches to and benefits
the land and is not limited to a particular landowner. State statue requires that CUPs be recorded
with the county recorders office. When the property,is sold, the new landowner will have the
continued right to the CUP so long as the conditions are met.
When can a city revoke a CUP?
A city can revoke a conditional use permit if there is not substantial compliance with conditions,
so long as the revocation is based upon factual evidence, after appropriate notice and hearing.
Because a CUP is a property right, a city should work closely with the city attorney if considering
a CUP revocation.
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Planning&Zoning 101—17
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Small Cities Track-2011
Planning&Zoning 101-18
a10
LEAGUEOF CONNECTING & INNOVATING
MINNESOTA SINCE 1913
CITIES
RISK MANAGEMENT INFORMATION
LMCIT COVERAGE FOR LITIGATION RELATING TO
LAND USE REGULATION, DEVELOPMENT,
FRANCHISING AND ENTERPRISE OPERATIONS
Litigation relating to a city's land use regulation decisions, development and redevelopment
activities, franchising, or city enterprise operations can be very expensive. For a city that's hit
with this kind of litigation, the legal costs can be a significant financlal burden. For this reason,
the League of Minnesota Cities Insurance Trust(LMCIT)developed a specialized approach to
cover this type of litigation for Minnesota cities.
Compared to conventional liability insurance, a key difference of the LMCIT coverage is that
litigation relating to land use regulation, development or redevelopment, franchising, or enterprise
operations is covered regardless of whether the litigation includes a claim for damages. Keep in
mind this memo is only a summary of the coverage -the actual terms and conditions are defined
by the LMCIT liability coverage document, and any specific coverage issues will be determined
based on language in the coverage document.
What types of litigation are covered?
LMCIT provides coverage for four broad classes of Learn More
litigation:
LMCIT's coverage for land use,
1. Land use regulation. Any litigation relating to the development,franchising, and
application, interpretation, or validity of a land use, enterprise operations litigation is
zoning, subdivision, or similar ordinance or found in "Coverage D" of the
regulation. LMCIT liability coverage
2. Development. Any litigation relating to the city's document.
involvement in the financing or approval of any
development of redevelopment project.
3. Franchising. Any litigation relating to the granting, refusal, interpretation, or enforcement of
any franchise, ordinance, permit, license, or other mechanism through which the city
authorizes or regulates parties other than the city, the provision of telecommunications,
electricity, gas, heat, sewage treatment or refuse collection within the city.
4. Enterprise operations. Any litigation relating to a city's authority to engage in enterprise
operations. "Enterprise operation" means any arrangement under which the city offers goods
or services for a fee, such as utilities, telecommunications services, or similar things.
i
LEAGUE OF MINNESOTA CITIES 14511NIYrRSIIIAV[.\NISI vIi0N1:(651) 281-1200 1AXA651) 281-1298
INSURANCE TRUST s3 rnul.,XIN 55103-2014 1 o I riuI.(800)925-1122 wrr..Ivwiv I V( (1R(.
Small Cities Track-2011
Planning&Zoning 101—19
I'
The following types of litigation are excluded under
Coverage D of the LMCIT liability coverage document: Something to ThinkAbout
• Physical takings. Litigation that seeks only • Subject to the exceptions
compensation or other relief for an actual or alleged listed to the left, litigation
physical occupation, invasion,or use of property by. relating to land use
the city. regulation,development,
• Special assessments. Litigation that seeks only franchising,or authority to
reduction or invalidation of a special assessment. engage in enterprise
• Negligent inspection. Litigation that seeks only operations is covered
compensation for damages based on the city's actual whether or not it includes a
or alleged negligent inspection or enforcement of the claim for damages.
state building code or the state plumbing,electrical,
fire, or similar codes. (These"negligent inspection" • The coverage is available
damage claims are covered under the general regardless of the whether the
municipal liability coverage found in Coverage A.) action is brought by or
• Contractual obligations. Litigation that seeks only against the city. Accordingly,
amounts due or allegedly due under contract, the coverage is available even
including any city bonds or other obligations. if the city is a plaintiff seeking
• Ordinary land use enforcement. Litigation which to enforce its land use,
was initiated by the city to enforce a land use development,franchise, or
regulation, and which does not involve a challenge enterprise rights.
to the validity or constitutionality of the regulation.
I
If we get involved in this kind of litigation, what does the coverage pay for?
The coverage applies to the following types of"litigation costs":
• Legal fees for the counsel selected jointly by the city and LMCIT to represent the city.
• Necessary legal fees for counsel to represent the city which the city incurs prior to reporting
the litigation to LMCIT(these fees are covered at 50 percent).
• Necessary litigation expenses other than legal fees.
• Most damages the city is required to pay.
• Supplementary payments, including up to$200,000 of statutory attorneys fees.
Effective November 15, 2010 coverage for"litigation costs" is based on a sliding scale and also
based on whether members participate in the land use incentive program (please note that for
litigation between LMCIT members, the coverage pays only one-half of the percentages described
below, subject to a $500,000 maximum):
Coverage for members that do participate in Coverage for members that don't participate in
incentive incentive
• 100%of first$25,000 • 85%of first$250,000
• 85%of next$225,000 • 60%of amounts above $250,000
• 60%of amounts above$250,000 • 50%of necessary legal fees members incur
• 50%of necessary legal fees members incur prior to reporting litigation to LMCIT
prior to reporting litigation to LMCIT • $1 million annual aggregate limit
• $1 million annual aggregate limit
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Small Cities Track-2011
Planning&Zoning 101-20
The land use incentive program was developed to reward
Property/Casualty members that successfully complete More Information
online training about land-use decision making. Cities
that meet the training requirements will earn a savings of The land use incentive program
as much as$3,750 per land use claim. Cities that do not rewards property/casualty
meet the training requirements will pay a higher rate of members that successfully
land use costs. complete online training about
The incentive is available on an ongoing basis to all land use decision making.
member cities that certify upon completion of the course The web-based training is
at each subsequent renewal that the following city provided by LMCIT and available
officials successfully completed the training: through the League's City
• A quorum of the city council; Learning Point. The cost is$30
• The chair and another planning commission member; per person,with group discounts
• The city planner or other staff person with lead available.
responsibility for planning activities. Go to the E-Learning area of the
Cities can qualify for the incentive at any time by meeting Training and Conferences section
the training requirement, at which point the city will ofthe League website at
receive an endorsement. Any land use claims made www.Imc.org to learn more.
against the city after receiving the endorsement will
qualify for the savings.
What kinds of damages are not covered?
Most money damages that might be awarded against the city are covered. This specifically
includes_two types of damages that are frequently excluded under conventional liability insurance
policies:
• Awards of attorneys fees in federal civil rights or state human rights actions; and
• "Temporary taking"damages; i.e., inverse condemnation damages awarded for the claimant's
loss of use of property prior to the time that a land use regulation has been ruled by a court to
be unconstitutional as a"taking"of property.
The following types of monetary damages are not covered:
• Exemplary or punitive damages or attorneys fees awarded against a city officer or employee,
unless he/she was acting within his/her duties and not guilty of malfeasance, willful neglect of
duty, or bad faith.
• Fines or penalties.
• The cost of complying with an injunction or similar order.
• Repayment of any taxes, assessments, fees, or other charges that the city wrongfully collected,
or any interest on that repayment.
• Amounts paid for the permanent acquisition of property or property rights, or for the right to
permanently enforce a land use regulation or restriction.
• Amounts due under contract.
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How do.city deductibles work in conjunction-with the co-payment provision?
If the city's liability coverage is written with a ddductibld,the deductible is applied to the
percentage of the costs that would otherwise be paid by LMCIT. The"city's co-pay amounts (i.e.,
the percentages of litigation-costs and damages for which the city is responsible, as outlined above)
do not count toward satisfying the city's deductible.
For example, if the litigation costs on a case are$75,000 and the city carries a$10,000 deductible,
the city's share of the$75,000 is determined as follows:
Members that participate in incentive Members that don't participate in
incentive
LMCIT's share $57,500 (100%of the first$25,000 $53,750(85%of the first$250,000,
plus 85%of the next$225,000, less less the $10,000 deductible)
the$10,000 deductible
City's share $17,500(15%of the amount in $21,250 (15%of the first$250,000,
excess of$25,000, plus the $10,000 plus the$10,000 deductible)
deductible
What is the coverage limit?
The primary LMCIT coverage provides a$1,000,000 annual aggregate limit for all "Coverage D"
litigation filed during the city's coverage year. This is the maximum amount of litigation cost and
damages that LMCIT will pay regardless of the number of claims or occurrences in any given
year. By purchasing LMCTT's optional excess liability coverage,the city can increase the total
available limit in $1,000,000 increments up to $6,000,000.
In calculating whether the aggregate limit has been met, city co-payments are not included, but
city deductible obligations are. For example, in order to exhaust the$1,000,000 aggregate limit a
city would have to incur total litigation costs of$1,556,250. If the city's coverage was subject to a
$25,000 deductible, the maximum amount LMCIT would actually pay would be$975,000:
For litigation between LMCIT members,the coverage is subject to a limit of$500,000 for that
claim. This limit is within— i.e., not in addition to—the$1,000,000 annual aggregate limit(the
coverage percentages for this type of litigation are also reduced by one-half).
When should the city report a land use regulation, development, franchising, or
enterprise authority dispute to LMCIT?
Under Coverage D, coverage for this type of litigation is
triggered when the litigation is first filed or served on Something to Think About
the city. You should report the litigation to LMCIT All land use regulation,
immediately upon filing or being served with the
summons and complaint that formally commences the development,franchising, or
litigation. You must report the litigation to LMCIT no enterprise authority disputes
later than one year after the litigation commences in should be reported to LMCIT
order for the coverage to apply. immediately upon filing or being
served with the summons and
If you're involved in a land use regulation, complaint that formally
development, franchising, or enterprise authority dispute commences the litigation.
you think is likely to lead to litigation, we strongly
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encourage you to report it to LMCIT right away, even before the litigation is formally commenced.
While general legal advice from the city attorney is not normally considered part of the litigation
costs, it is possible the city could incur some litigation-related costs in anticipation of the litigation.
Keep in mind if the city incurs litigation costs before reporting the actual or anticipated litigation
to LMCIT,those costs will be reimbursed at only 50 percent.
How is litigation counsel selected?
Litigation counsel is selected by mutual agreement between the city and LMCIT. If in some
unusual circumstance we were not able to agree on an attorney to defend the city, LMCIT will give
the city a list of five qualified attorneys who are experienced in that type of litigation. The city
then can select any of the five.
Except in very unusual circumstances, the city's own city attorney will not be appointed to
represent the city in the covered litigation. We take this approach because the city attorney has
often been intimately involved in providing legal advice to the city about how to handle the
particular land use situation. If the city attorney was selected to represent the city in the litigation,
it is conceivable the attorney could become involved in having to defend his or her own
recommendations, and to some degree the city might lose the benefit of an independent, detached
evaluation of the strengths and weakness of the case.
Who manages the litigation and makes the decisions on strategy and settlement?
With one exception, decisions on settlement and strategy are made by mutual agreement of the city
and LMCIT, in consultation with the attorney the city and LMCIT have agreed to retain. Neither
LMCIT nor the city has the authority to agree to a settlement without the other's consent.
The one exception is litigation between LMCIT members. In cases of inter-city litigation, after
selection of the counsel, LMCIT will not participate in the management of the litigation, except
that settlement of any litigation involving the payment of damages must be approved by LMCIT.
This collaborative decision-making process reflects the particular nature of this type of litigation.
Unlike the tort claims that conventional insurance policies are designed to cover, the issues in this
kind of litigation are often not just a matter of whether and how much money damages the city
owes. The real issues at stake may be questions like whether or not a permit is issued, a financing
package approved or a franchise granted—things which involve local policy issues and which may
require legislative or other official action by the city council.
At the same time, we also need to keep in mind the funds used to pay LMCIT's share of the costs
are really the joint property of all of LMCIT's member cities. Those other member cities are
entitled to know that their funds aren't being wasted on frivolous disputes or in pointlessly
prolonging litigation in which the city has little chance of prevailing. Involving both the city and
LMCIT in the decision-making process is a means of trying to balance those potentially competing
interests. The cost-sharing provisions are incorporated in the coverage for much the same reason.
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Will claims under this coverage affect our future premium costs?
Yes. The premiums for the city's LMCIT liability coverage are experience-rated, so any claims
the city has will affect future premiums.
More Information
Claims under Coverage D are weighted inore'heavily in
the experience-rating formula than are ordinary liability To learn more about experience
claims. The reason is,that the costs for this type of rating see Experience Rating in
litigation are to a significant extent a function of the LMCIT's Liability and Workers'
discretionary decisions the city makes. (Liability claims Compensation Premiums.
relating to employment are also weighted,more heavily
in the experience-rating formula, for similar reasons.)
And of course, these claims will also affect the city's Your League Resource
share of any future dividends. Under LMCIT's dividend
formula, dividends are allocated among the member For more information, please
cities based on the difference between the city's total contact your LMCIT underwriter at
earned premiums and total incurred losses, for all the 651-281-1200 or 800-925-1122.
years the city has participated in LMCIT.
Pete Tritz 10/10
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