I’m sure it wasn’t the top of your agenda but if you needed to address a variance from zoning regulations you have been out of luck for about two years if you lived in a city. The good news is the legislature finally found a solution that was adopted in state law to solve the problem.
What had happened was there was a court ruling concerning a variance request in the city of Minnetonka. Variances in the past were considered when a “hardship” existed. The hardship had to be with a situation that exists with the land and can not be created by the applicant or a former owner. The hardship can not be economic in nature. The courts ruled that a “hardship” means there is no other use of the property rather than the traditional or former approach to the definition.
Counties on the other hand have a different standard in state law, that of “practical difficulty”. Essentially the definitions are the same but with counties they continued to have the ability to grant variances. The legislature finally determined that the standard of “practical difficulty” could be used for cities making that change in state law.
Cities now have the ability to grant variances under the statues regardless of how local ordinances are written. It is always helpful however to eliminate confusion in the code provisions by having the local ordinances match state law, even though state law supersedes local codes. The Planning Commission reviewed their code provision regarding the change in state law and made some minor modifications to it. With that recommendation the City Council approved the change in the code. Ordinance 11-09, 3rd Series was adopted and now the city is in conformance with state law regarding the issuance of variances.
All that being said the granting of variances is not something the Planning Commission (as the Board of Review) takes lightly. As stated at the start the conditions for a variance are rather strict. The new “practical difficultly” is no different that the old “hardship”. The conditions must run with the land and not be self imposed or economic in nature. A variance can not be granted for a use. Variances are typically for setbacks or other specific requirements of the code.
The granting of a variance is a process and an outcome. Requesting a variance requires a fee be paid and a public hearing held. Property owners within 350 feet of the property are mailed notice to comment on the proposal. After reviewing the facts and hearing from the public the Planning Commission makes a determination. If a variance is granted a document is recorded that runs with the land providing for the deviation in zoning requirements.
Just because we now have the authority doesn’t mean they are easy to come by. If you are thinking about one, contact city staff to discuss your proposal and whether or not the granting is feasible. Only the Planning Commission can approve or deny a request.
