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Folder: PL PACKETS 2005-2011
Document: PL PACKET 06212011
CITY OF ST. ANTHONY
PLANNING COMMISSION MEETING AGENDA
TUESDAY, ]UNE 21, 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 MAY 17, 2011
VI. COMMUNICATION WITH CITY COUNCIL.
VII. PUBLIC HEARINGS.
VII.1. ZONING ORDINANCE SECTION 152.142, LIGHT INDUSTRIAL DISTRICT PERMTTTED
CONDITIONAL USES
VII.2. ZONING ORDINANCE SECTION 152.226, LIMITED CONTINUANCE
VII.3. ZONING ORDINANCE SECTION 152.245, VARIANCES
VIII. CONCEPT REVIEWS.
NONE
IX. REPORTS FROM STAFF.
X. OTHER BUSINESS.
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, slate 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.
F:\Planning\PC Agendas\201 1\0621201 1 pc agenda.doc
i
1 CITY OF ST. ANTHONY
2
3 PLANNING COMMISSION MEETING
4
5 MAY 17, 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, Poucher, Heinis, and
16 Chaput.
17 Absent: Commissioners Cincoski and 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. APPROVAL OF MEETING AGENDA.
25
26 Consensus of the Board was to approve the meeting agenda of May 17, 2011 as submitted.
27
28 V. APPROVAL OF MEETING MINUTES.
29
30 Motion by Commissioner Heinis, second by Commissioner Chaput,to approve the January 18,
31 2011 Meeting Minutes as submitted.
32
33 Motion carried unanimously.
34
35 VI. COMMUNICATION WITH CITY COUNCIL.
36
37 None.
38
39 VII. PUBLIC HEARINGS.
40
41 None.
42
43 VIII. CONCEPT REVIEWS.
44
45 None.
46
47 IX. REPORTS FROM STAFF.
48
49 IX.1. NEW VARIANCE LEGISLATION
Planning Commission Regular Meeting Minutes
May 17, 2011
Page 2
1
2 Assistant City Manager Moore-Sykes reported that on May 5, 2011, Governor Dayton signed
3 into law the new legislation amending Minnesota Statutes Section 462.357, subd. 6,to restore
4 municipal variance authority in response to the Supreme Court's ruling in Krummenacher v. City
5 of Minnetonka, decided on June 24,2010. She stated the amendment became effective on May
6 6, 2011 and renames the variance standard test of undue hardship to practical difficulties but
7 otherwise retains the three factor test that the former variance language included. She indicated
8 that an additional sentence was added that more closely mirrors a city's authority that variances
9 shall only be permitted when they are in harmony with the purpose and general intent of the
10 ordinance and when the terms of the variance are consistent with the comprehensive land use
11 plan. She added that the City Attorney and staff are in the process of amending the City Code to
12 include this new language.
13
14 Chair Jensen stated that he attended a seminar last week regarding the new legislation and the
15 premise of the amendment is that it provides more flexibility back to cities in terms of how to
16 process variance requests,as well as how applicants apply for variances, so long as the
17 applicants provide sufficient written material in support of their case to move forward through
18 the Planning Commission and City Council. He noted that it is not up to staff or the Planning
19 Commission to provide the reasons for a variance and applicants will need to frame their
20 variance requests better than they have in the past in order to comply with the new statute.
21
22 Assistant City Manager Moore-Sykes presented information prepared by the League of
23 Minnesota Cities entitled"Variances: Very Variable? Verifying Variance Variety in the
24 Vernacular."
25
26 Chair Jensen requested that staff work with applicants when applying for a variance to make sure
27 that the five questions outlined in the League's summary have been addressed in order to make it
28 easier to through the public hearing process and to adopt findings that address those questions.
29
30 Assistant City Manager Moore-Sykes agreed and noted that some of the conditions are not new,
31 including"is the variance in harmony with the purpose and intent of the ordinance,""is the
32 variance consistent with the comprehensive plan," and"are there unique circumstances to the
33 property not created by the landowner." She explained that the question"does the proposal put
34 the property to use in a reasonable manner"is framed differently and makes it easier when
35 making a decision because it gets the applicant to understand what is meant by"reasonable"and
36 some of the issues their neighbors might have with the variance. She stated that the question
37 "will the variance, if granted, alter the essential character of the locality"is also not new and the
38 City has always tried to keep variances to the point where it does not alter the character of the
39 neighborhood and retains the autonomy in the neighborhood.
40
41 IX.2. CONDITIONAL PERMITTED USES IN INDUSTRIAL ZONING DISTRICT
42
43 Assistant City Manager Moore-Sykes explained that staff recently discovered that a portion of
44 the Zoning Ordinance §152.142 was inadvertently missed by the printer and had changed the
45 sequencing such that subd. (h)and subd. (i)were both left out during the rewriting of the Zoning
46 Code. She stated that staff researched whether there is a need for dwelling units to be part of
Planning Commission Regular Meeting Minutes
May 17, 2011
Page 3
1 subd. (g) and determined that Roseville, Columbia Heights, and Fridley allow caretaker units in
2 the Industrial Zoning District; however, it does not appear that the City has any caretaker units so
3 is in the process of determining whether to continue to allow caretaker units for mini-storage
4 warehouses. She added that this item will come back to the Planning Commission as part of a
5 public hearing. She discussed the provisions allowing up to an 11,650 square foot caretaker unit,
6 stating that this appears to be a typographical error and should have been 1,600 square feet or
7 1,100 square feet. She stated that this item will also come back to the Planning Commission.
8
9 X. OTHER BUSINESS.
10
11 X.1. CODE ENFORCEMENT REPORT, UPDATE
12
13 Assistant City Manager Moore-Sykes apologized that this item was not ready for discussion.
14
15 XI. COMMUNITY FORUM.
16
17 None.
18
19 XII. INFORMATION AND ANNOUNCEMENTS.
20
21 Assistant City Manager Moore-Sykes presented a publication prepared by the League entitled
22 "Planning and Zoning 101."
23
24 XIII. ADJOURNMENT.
25
26 Motion by Commissioner Chaput, second by Commissioner Poucher,to adjourn the meeting at
27 7:23 p.m.
28
29 Motion carried unanimously.
30
31 Respectfully submitted,
32 Barbara Hughes
33 TimeSaver Off Site Secretarial, Inc.
STAFF REPORT
To: Chair and Planning Commissioners
From: Kim Moore-Sykes, Assistant City Manager
Date: June 21,2011
Subject: Amending Zoning Ordinance 152.142 Light Industrial District Permitted Conditional Uses
Background. At the May 2,2011 and May 31,2011 City Council work sessions,Staff reported on the need
to amend the City's Zoning Ordinance 152.142,Light Industrial District Permitted Conditional Uses,to
return language to the Zoning Code that had been mistakenly omitted from the City Code by the publisher.
Staff noticed the language omission when an applicant requested a meeting to discuss the possibility of
having an assembly place at 2828 Anthony Lane South.
This language had be approved by the City Council prior to the City's Code of Ordinances being recodified
in 2009 and allowed,with a conditional use permit,assembly places,meeting lodges,or convention halls in
the Industrial Zoning District. In addition,catering operations,delicatessens,and cafeterias were included
as allowed as conditional uses.
While discussing the omitted ordinance language,Council also asked Staff to research subsection (g) of the
same Section,regarding caretaker units for mini-warehouse facilities. They questioned the need for this
subsection. Staff found that the cities of Columbia Heights,Fridley and Roseville still allow caretaker units,
in addition to surveillance cameras. The caretaker unit for the mini-warehouse storage facility in St.
Anthony appears to be used largely for storage;no one appears to be living there.
Since there appears to be no need for caretaker units any longer,Council is proposing the following
revisions to§152.142,Permitted Conditional Uses,including striking the caretaker language at§152.142 (g)
and to re-sequencing 152.142 in the following manner:
{$} ,
bui4ding or-bui4dings designed and intended for- use by th&ee R-F me-fe _Aiffer-ent tenants
(h)(g) Assembly,meeting lodge,or convention halls.
(i) (h) Catering operations and in-house cafeterias not intended for retail or public use and
d„Beat
(}} (i) Day-care Center without drive-through facilities.
Attachments.
• Revised Ordinance 2011-002
FAPlanning\Staff Reports\201 1\0621201 1 Industrial Zone assembly ordinance amendment stf rpt.doc0621201 I Industrial Zone assembly
ordinance amendment stf rpt.doc
CITY OF ST. ANTHONY VILLAGE
ORDINANCE 2011-004
AN AMENDMENT TO ZONING ORDINANCE 152.142 LIGHT INDUSTRIAL
DISTRICT PERMITTED CONDITIONAL USES
The text amendment would read as follows:
152.142 Permitted Conditional Uses.
(14)Not mefe than two dwelling units of not more than 11,650 squafe feet, eaeh h :e than
dwelling unit may be eeeupied by a per-son other-thm a bona fide eafetaker-of a fnini wafeheu
faraility and the ,
s spouse and dependent el4ldfen. For-purposes of d�s pffagmph,the tefim...
44fnipii warehouse"means a btfilding or-buildings designed and ifftepAed for-wafehouse use by thfee or-
more differ-ent tenants.
(g) Assembly, meeting lodge, or convention halls.
(h) Catering operations, cafeterias and delicatessens.
(i) Day-care Center without drive-through facilities.
In the City Ordinance Chapter 31.06, it states that rezonings or other zoning ordinance amendments shall
require only one reading.
Adopted:
Mayor
ATTEST:
City Clerk
Publish: St. Anthony Bulletin
STAFF REPORT
To: Chair and Planning Commissioners
From: Kim Moore-Sykes, Assistant City Manager
Date: June 21,2011
Subject: Amending Zoning Ordinance Section 152.226, Limited Continuation
Background. Staff received a letter dated May 31,2011 from the City Attorney indicating,that as the result
of recent legislative action,it had become necessary for the City to update the City's Zoning Code to reflect
the current provisions of the Minnesota Statutes dealing with limited continuation or nonconformities.
Essentially,MN Stat.,Section 462.337,subd. le has been amended to provide the following:
• that any nonconformity may be continued,including through repair,replacement,
restoration,maintenance or improvement,but not including expansion;
• unless the nonconformity or occupancy is discontinued for a period of more than a year;
• or any nonconforming use is destroyed by fire or other peril to the extent greater than 50% of
its estimated market value and no building permit has been applied for within 180 days of
the property's damage.
The City's limited continuation ordinance currently does not comply with Minnesota statutes because it
does not allow for the nonconformity to be reconstructed or replaced. Minnesota statutes also do not allow
that a city's code provisions for nonconformities can be more restrictive than Minnesota law.
Attachments.
• Revised Ordinance 2011-05
• Letter from the City Attorney, RE: amending Section 152.226, Limited Continuation
FAPlanning\Staff Reports\2011\06212011I limited continuance ordinance amendment stf rpt.doc062120111 limited continuance ordinance
amendment stf rpt.doc
CITY OF ST. ANTHONY VILLAGE
ORDINANCE 2011-05
AN ORDINANCE AMENDING SECTION
152.226 OF THE ST. ANTHONY CITY CODE
The City Council of the City of St. Anthony hereby ordains:
Section 1. Amendment of Section 152.226 of the St. Anthony Cily Code. Section 152.226 of
the St. Anthony City Code shall be amended to read as follows:
"§ 152.226 LIMITED CONTINUATION.
Except as otherwise provided by law,any
nonconformity, including a nonconforming use or occupation of land or premises,may be
continued, including through repair,replacement, restoration, maintenance or improvement, but
not including expansion,unless:
(A) Vie. Change to conforming use. No stmetwe used for-a
. The property used for a nonconforming use is subsequently used
for a conforming use.
(B) . Discontinued use. No noneonfenninguse may be eK4ended to
eeoupy any additional land ot4side any buildings in whieh the neneenfefming use is een"o
The nonconformity or occupancy is discontinued for a period of more than one year.
(C) GhanW to eenforming use. Destruction of building. if prepel4y used for a
noneefife * . subsequently used for-a eenfeEming use,the aafteenfenning use may
Any nonconforming use is destroyed by fire or other peril to the extent of
greater than 50%of the estimated market value, as indicated by the records of the county
assessor at the time of damage,and no building permit has been applied for within 180 days of
when the property is damaged. (1993 Code, § 1660.02) Penalty, see § 10.99."
or a period of 12
month the., n f ;.,,., o „11 .. longer-b peFmitt d
destroyed to the extent of over 501% of the-faiF maffketvalue,d noneenfor-ming
no longer be permitted.(1993Code; § 1660.02) P��e §-10.°°
Adopted:
Mayor
ATTEST:
City Clerk
Publish: St. Anthony Bulletin
-2-
DORSE.Y & WHITNEY LLP
JEROME P.GMLIGAN
(612)340-2962
FAX(612)340-2643
giliigan.Jerome®doraey.com
May 31,2011
Mr. Michael Mornson
City Manager
City of St.Anthony
3301 Silver Lake Road
St. Anthony,MN 55418
Re: Amendment to Zoning Code for Nonconformities and Variances
Dear Mr. Mornson:
The City Council is considering amendment to the provisions of the City's Zoning Code
relating to nonconformities and variances. These changes are necessary to update the Zoning
Code to reflect the current provisions of Minnesota Statutes, Section 462.357 dealing with
nonconformities(Minnesota Statutes, Section 462.337, subd. le)and variances(Minnesota
Statutes, Section 462.357, subd. 6).
Minnesota Statutes, Section 462.357,is the statute that gives the City the authority to
adopt its Zoning Code and sets forth various zoning requirements. The Minnesota Legislature
has previously adopted revisions to Minnesota Statutes, Section 462.357,subd. le that provide
that any nonconformities may be continued,including though repair,replacement,restoration,
maintenance or improvement,but not including expansion,unless(i)the nonconformity or
occupancy is discontinued for a period of more than one year; or(ii)any conforming use is
destroyed by fire or other peril to the extent greater than 50%of its estimated market value and
no building permit has been applied for within 180 days of which the property is damaged.
Currently Section 152.226 of the City Code does not comply with the provisions of
Minnesota Statutes, Section 462.357, subd. le,because it provides that no nonconformity may be
reconstructed or replaced. The City's Zoning Code provisions for nonconformities cannot be
more restrictive than Minnesota law,and Section 152.226 of the City Code should be amended
by the City Council to comply with the current requirements of Minnesota law for
nonconformities.
In 2010 the Minnesota Supreme Court in Krummenacher v. Minnetonka interpreted the
"undue hardship"standard for the granting of variances then contained in Minnesota Statutes,
Section 462.357, subd. 6,to require a variance applicant to prove that the property in question
cannot be put to a reasonable use without the variance. This interpretation by the Supreme Court
of the standard for granting variances resulted in cities being unable to grant variances in
DORSEY & WHITNEY LLP • WWW.DORSEY.COM • T 612.340.2600 • F 612.340.2868
SUITE 1500 • 50 SOUTH SIXTH STREET - MINNEAPOLIS, MINNESOTA 55402-1498
USA CANADA EUROPE ASIA-PACIFIC
ooRSEY-
Mr. Michael Mornson
May 31, 2011
Page 2
virtually every case since properties generally can be put to some reasonable use without a
variance.
In response to the Minnesota Supreme Court's decision in Krummenacher v.
Minnetonka,the Minnesota Legislature at its 2011 session amended Minnesota Statutes, Section
462.357, subd. 6,to change the standard for granting variances from the"undue hardship"
standard, to require the applicant to establish that there are"practical difficulties"in complying
with the zoning ordinance. "Practical difficulties"is defined as follows:
"Practical difficulties"as used in connection with the granting of a variance
means the property owner proposes to use the property in a reasonable manner not
permitted by the zoning ordinance;the plight of the landowner is due to
circumstances unique to the'property not created by the landowner; and the
variance,if granted,will not alter the essential character of the locality."
Currently Section 152.245(C)of the City Code contains the"undue hardship"standard
for granting variances,and needs to be updated to provide for the"practical difficulties"standard
now contained in Minnesota Statutes, Section 426.357, subd. 6,in order to comply with the
current Minnesota law for granting variances.
Should you have any questions please give me a call.
Yours Truly,
2
J 01 Gilligan
JPG/pmh
cc: Kim Moore-Sykes
DORSEY&WHITNEY LLP
STAFF REPORT
To: Chair and Planning Commissioners
From: Kim Moore-Sykes, Assistant City Manager
Date: June 21,2011
Subject: Amending Zoning Ordinance 152.245 Variances
Background. At the May 31,2011 City Council work session,Staff reported on the need to amend the
City's Zoning Ordinance 152.245,Variances. 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 Krmmmenacher v. City of Minnetonka, 783 N.W.2d
721 (Minn June 24,2010),which resulted in the cities being unable to grant variances since it was their stance
that generally properties can be put to some reasonable use without a variance.
This amendment that became effective on May 6, one day after the Governor signed the bill, changes the
standard for granting variances from"undue hardship" to requiring the applicant to establish that there are
"practical difficulties" associated with the property in complying with the City's zoning code. The new law still
retains the familiar three-factor test of reasonableness, uniqueness, and essential character previously
associated with"undue hardship"in explaining reasons for noncompliance with the zoning code. 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 drafted the attached amendment to the City's Zoning Code on Variances to include
the new language of Minnesota Statutes, Chapter 19 for the Planning Commission's consideration and
recommendation.
Attachments.
• Revised Ordinance 2011-OOX
• Letter from the City Attorney RE:Variance Ordinance amendment
• League of Minnesota Cities' White Paper on the Variance Legislation
F:\PIanning\Staff Reports\2011\0621201 I Variance ordinance amendment stf rpt.doc06212011 Variance ordinance amendment stf rpt.doc
CITY OF ST. ANTHONY VILLAGE
ORDINANCE 2011-06
AN ORDINANCE AMENDING SECTION
152.245(C)OF THE ST. ANTHONY CITY CODE
Section 2. Amendment of Section 152.245(C)of St. Anthony City Code. Section 152.245(C)of
the St. Anthony City Code shall be amended to read as follows:
"(C) Evidence. No variance will be granted unless the evidence presented discloses all
of the following facts.
(1) The subject matter of the application is within the scope of this section.
(2) Strict enforcement would causeundue hardship practical difficulties because:
(a) The property
proposes to use the pmpeAy in a reasonable mannef-not pennitted by
zerting Bede.owner proposes to use the property in a reasonable manner
not permitted by the zoning code;
(b) ;
The plight of the property owner is due to circumstances unique to the
property not created by the property owner;
(c) The variance, if granted, will not alter the essential character of the
locality; and/of
(d) Economic considerations alone are not the basis of the 1wdsltip practical
difficulties.
(3) The
under-eensidefMie variance, if granted, would be consistent with the City's comprehensive land
use plan.
(4) The granting of the variance is in keeping with the spirt harmony with the general
purposes and intent of the zoning code."
Section 3. Effective Date. This ordinance shall become effective as of its date of adoption.
P �
Adopted:
Mayor
ATTEST:
City Clerk
Publish: St. Anthony Bulletin
-2-
DORSEY-
DORSEY & WHITNEY LLP
J=OACO.P.GUJJ 3AN
(612),340-2962
FAX(612)340-2643
gMpnjevome@dorsay.com
May 31,2011
Mr. Michael Mornson
City Manager
City of St.Anthony
3301 Silver Lake-Road
St. Anthony,MN 55418
Re: Amendment to Zoning Code for Nonconformities'and Variances
Dear Mr. Mornsbn:
The City Council is considering amendment to the provisions of the City's Zoning Code
relating to nonconformities and variances. These changes are necessary to update the Zoning
Code to reflect the current provisions of Minnesota Statutes, Section 462.357 dealing with
nonconformities(Minnesota Statutes, Section 462.337, subd. le)and variances(Minnesota
Statutes;Section 462.357; subd.6).
Minnesota Statutes, Section 462.357,is the statute that gives the City the authority to
adopt its Zoning Code and sets forth various zoning requirements. The Minnesota Legislature
has previously adopted revisions to Minnesota Statutes, Section 462.357,subd. le that provide
that any nonconformities may be continued,including though repair,replacement,restoration,
maintenance or improvement,but not including expansion,unless(i)the nonconformity or
occupancy is discontinued for a period of more than one year; or(ii)any conforming use is
destroyed by fire or other'peril to-the extent greater than 50%of its estimated market value and
no building permit has been applied for within 180 days of which the property is damaged
Currently Section 152.226 of the City Code does not comply with the provisions of
Minnesota Statutes, Section 462.357, subd. le,because it provides that no nonconformity may be
reconstructed or replaced. The City's Zoning Code provisions for nonconformities cannot be
more restrictive than Minnesota law,and Section 152.226 of the City Code should be amended
by the City Council to comply with the current requirements of Minnesota law for
nonconfonnities.'
In 2010 the Minnesota Supreme Court in Krummenacher v. Minnetonka interpreted the
"undue hardship"standard for the granting of variances then contained in Minnesota Statutes,
Section 462.357, subd. 6,to require a variance applicant to prove that the property in question
f cannot be put to a reasonable use without the variance. This interpretation by the Supreme Court
II of the standard for granting variances resulted in cities being unable to grant variances in
DORSEY & WHITNEY LLP • WWW.DORSEY.COM • T 612.340.2600 • F 612.340.2868
SUITE 1500 • 60 SOUTH SIXTH STREET • MINNEAPOLIS, MINNESOTA 55402-1498
USA CANADA EUROPE ASIA-PACIFIC
a
) HORSEY"
Mr.Michael Mornson
May 31,2011
Page 2
virtually every case since properties generally can be put to some reasonable use without a
variance.
In response to the Minnesota Supreme Court's decision in Krummenacher.v.
Minnetonka,the Minnesota Legislature at its 2011 session amended Minnesota Statutes, Section
462.357,subd. 6,to change the standard for granting variances from the."undue-hardship
standard,to require the applicant to establish that there are"practical difficulties"in complying
with the zoning ordinance. "Practical difficulties"is defined as follows:
"Practical difficulties"as used in connection with the granting of a-variance _
means the property owner proposes to use the property in a reasonable manner not
permitted by the zoning ordinance;the plight of the landowner is due to
circumstances unique to the'property not created by the landowner;and the
variance,if granted,will not alter the essential-character of the locality."
Currently Section 152.245(C)of the City Code contains the"undue hardship"standard
for granting variances,and needs to be updated to provide for the"practical difficulties"standard
now contained in Minnesota Statutes, Section 426.357,subd. 6,in order to comply with the
current Minnesota law for granting variances.
Should you have any questions please give me e.call.
Yours Truly,
J o P.Gilligan
JPG/pmh
cc: Kim Moore-Sykes
DORSEY$WHITNEY LLP
Gov. Dayton Signs Variance Legislation into Law Page 1 of 2
CUE of
MINNESOTA
CiIES
Gov. Dayton Signs Variance
Legislation 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 are 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
http://www.lme.org/page/1/variancebill.jsp 5/12/2011
Gov. Dayton Signs Variance Legislation into Law Page 2 of 2
that mirrors the new statute.
In addition,the new law clarifies that conditions may be imposed on granting of variances if those
conditions are directly related to and bear a rough proportionality to the impact created by the variance.
If you have questions about how your city should approach variances under this new statute,you should
discuss it with your city attorney or contact Jed Burkett,LMC land use attorney,at jburkett@lmc.org .
or(651)281-1247, or Tom Grundhoefer,LMC general counsel,at tgrundho@lmc.org or(651)281-
1266.
Read the current issue of the Cities Bulletin
Your LMC Resource
Contact Craig Johnson
IGR Representative
(651)281-1259 or(800) 925-1122
cjohnson@lmc.org
Contact Tom Grundhoefer
General Counsel
(651)281-1266 or(800) 925-1122
tgrundho@lmc.org
Contact Jed Burkett
Land Use Attorney
(651)281-1247 or(800) 925-1122
jburkett@lmc.org'
Copyright 02011 League of Minnesota Cities,145 University Ave.W,Saint Paul,MN 55103-2044 Phone:(651)281-1200 Toll-Free:(800)925-1122
http://www.lme.org/page/l/variancebill-isp 5/12/2011