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HomeMy WebLinkAbout6.l. Variance Standards Text Amendment 11-26-TA �ROSEMOLII�IT' EXECUTIVE SUMMARY CITY �OUNCIL Council Meetin Au ust 16, 2011 AGENDA ITEM: 11-26-TA: Variance Standards Text Amendment A Zoning Ordinance Text Amendment AGENDA SECTION: Updating the Standards for Reviewing Variance Applications to Comply with A L Chan es to State Law V f� 1Jv �-T PREPARED BY: Jason Lindahl, A.I.C.P. AGENDA NO. b,�. Planner ATTACHMENTS: Excerpt PC Minutes from 07-26-11, APPROVED BY: Variance Ordinance, League of Minnesota Cities Memo 2011 Variance Legislation, Revised Minnesota Statute 462.357, Subdivision 6 RECOMMENDED ACTION: Motion to Approve an Ordinance Amending the City of Rosemount Ordinance B Relating to Variances. SUMMARY This item was initiated by staff in xesponse to changes made by the State to Minnesota Sta.tute 462.357, Subdivision 6 rela.ting to standards for reviewing variance applications. Both the Planning Commission and staff recommend approval of this text amendment to bring the City's zoning regulations into compliance with revisions to the state law. PLANNING COMMISSION ACTION The Planning Commission reviewed this item on July 26, 2011. An excerpt of the draft minutes from that meeting is attached for your reference. After a presentation from staff, the Commission held a public heaxing that produced no comments. Cominissioner Miller suggested staff provide additional information to further define the five new criteria for reviewing variance. Staff replied that they could woxk with the City Attorney and other souYCes to pTOVide more information at a futute work session. The Commission then voted unanimously to recommend the City Council approve the proposed zoning ordinance text amendment related to variances. BACKGROUND In May, Governor Dayton signed a law amending Minnesota Statutes, Section 462.357, Subdivision 6 relating to standards for reviewing variance applications. The legislature passed and the Governor signed this law in response to a recent Minnesota Supreme Court case (Krummenacher v. City of Minnetonka). The new state law clarifies the standards for reviewing variances. First, it renames the municipal variance standard fxom "undue haxdship" to "practical difficulties," but otherwise retains the familiar 1 thYee-factor test of (1) reasonableness, (2) uniqueness, and (3) essential character. Second, the new law also adds a sentence from the county variance statute to provide consistency between municipal and county variance xeview standards. It Yeads, "Variances shall only be permitted when they are in harmony with the general purposes and intent of the oxdinance and when the terms of the variance are consistent with the compxehensive plan." Third, the new law makes clear that conditions may be imposed when granting a variance if those conditions are directly related to and bear a rough proportionality to the impact created by the variance. In Suminary, under the new law local governments must use the five (5) standards listed below to review all variance applications. If the applicant does not meet these criteria, the variance must not be granted. 1. Is the variance in harmony with the purposes and intent of the ordinance? 2. Is the variance consistent with the compxehensive plan? 3. Does the proposal put properry to use in a Yeasonable mannex? 4. Are there unique circumstances to the propeYty not created by the la,ndowner? 5. Will the variance, if granted, alter the essential character of the locality? ISSUE ANALYSIS Attached for your review is a draft ordinance amending Section 11-12 of the City Code relating to variances. In this ordinance, deleted language is while new language is underlined. The two recommended changes are summarized below and detailed in the attached draft ordinance. Sta.ff recommends two changes to Section 11-12-2: Pxocedure. First, Subsection C(Public Hearing) is amended to delete the requirement for the Board of Appeals and Adjustments to set a public hearing within thixty (30) days of filing a variance application. This standard no longer applies because setting hearings is now an administrative function done by staff and Minnesota Statute 15.99 requires governmental entities to ta,ke action on land use applications within 60 days or the request is approved. Second, the e�usting Subsection G(Findings) is deleted because these standaxds are no longer part of the state law. Staff has added the findings necessary under the current law fox granting of a variance. CONCLUSION RECOMMENDATION Both the Planning Commission and staff recommend approval of an amendment to Secrion 11-12 of the City Code relating to variances. This item was initiated by staff in response to recent changes made by the State to Minnesota Statute 462.357, Subdivision 6 which details standaxds for reviewing variance applications. The State made changes to this statute in reaction to the 2010 Minnesota Supreme Court ruling in Krummenacher v. City of Minnetonka. The proposed zoning text amendment seeks to align the City's zoning standards with the xevised state law. 2 EXCERPT OF DRAFT MINUTES PLANNING COMMISSION REGULAR MEETING JULY 26, 2011 b. Zoning Ordinance Text Amendment Updating the Standards for Reviewing Variance Applications to Comply with Changes to State Law (11-26-TA). Planner Lindahl stated that this item was initiated by staff in response to changes made by the Minnesota State Legislature to Minnesota Statute 462.357, Subdivision 6 relating to standards for reviewing variance applications. Staff recommends approval of this text amendment to bring the City's zoning regulations into compliance with revisions to the state law. A discussion took place on the defuution of "pxactical difficulties" and guidelines the Commission could use when making a decision. It was agreed to by the Commissioners that a workshop ox additional training as it becomes available on this topic would be helpful. The public hearing was opened at 8:17p.m. 'I'hexe were no public comments. MOTION by Ege to close the public hearing. Second by Irvixig. Ayes: 6. Nays: None. Motion approved. The public hearing was closed at 8:17p.m. MOTION by Powell to Recommend the City Council Approve an Ordinance Amending the City of Rosemount OYdinance B Relating to Variances. Second by Miller. Ayes: 6. Nays: Nane. Motion caxried. As follow-up, Mr. Lindahl stated this item will go before the City Council at their regular meeting on August 16, 2011. Oid Business: None. New Business: None. RepOrts: SenioY Planner Zweber reminded the Commission of the joint meeting on August 9, 2011, with the City Council. Adjournment: There being no furdier business to come before this Commission, Chairperson Powell made a motion to adjourn, seconded by Commissioner Irving. Upon unanimous decision, the meeting was adjourned at 8:19p.m. City of Rosemount Ordinance No. B- 216 AN ORDINANCE AMENDING THE CITY OF ROSEMOUNT ZONING ORDINANCE B RELATING TO VARIANCE STANDARDS THE CITY COUNCIL OF THE CITY OF ROSEMOUNT, MINNESOTA, ORDAINS that Ordinance B, adopted September 19, 1989, entitled "City of Rosemount Zoning Oxdinance," is hexeby amended as follows: Section 1. Rosemount Zoning Ordinance B, Section 11-8-5 is hereby amended as following: 11-12-1: AUTHORIZATION, POWERS AND DUTIES: The planning commission shall act as the Board of Appeals and Adjustments and shall have the power to heax and decide, subject to appeal to the City Council, requests in the following cases: A. Interpxetation: Hearing appeals where it is alleged that there is an errox in a decision or judgment made by an administrative officer in the interpretation or enforcement of this title or in the interpretation of zoning district boundaries B. Variances: Grant variances from literal ordinance requirements in instances where strict enforcement would cause undue hardship because of citcumstances unique to the individual property undex consideration. (Ord. B, 9-19-1989) 11-12-2: PROCEDURES: Interpretations may be requested to be heaxd by the Board of Appeals and Adjustments at any regularly scheduled meeting of the planning commission. Requests for varia,nces are subject to the following: A. Applications: Applications provided by the city must be completed in writing prior to any consideration of variance petitions. Fees for variances are established by resolution of the City Council. B. Applicant to Provide Plans, Maps, Surveys, Etc.: The Board of Appeals and Adjustments shall require the applicant to provide plans, maps, surveys, etc., as deemed necessary, to ensute proper review and consideration of variance peririons. C. Public Hearing: Notice of the hearing shall be published at least ten (10) days prior to the date of the hearing, and notice shall be mailed to each property owner within three hundred fifty feet (350') of the property to which the variance relates. However, zoning changes in the agriculture district, agriculture preserve and rural residenrial districts shall require mailed norice to each propeYty owner within one-fourth (1 /4) mile of the affected propeYty. The city shall use its available records to determine the names and addresses of property owners. Failure to give notice to individual property owners or defects in the notice shall not invalidate the proceedings, provided a bona fide attempt was made to comply with these provisions. D. Approval or Denial: the Board of Appeals and Adjustments, or the Cit� Council u�on a�eal. shall either appxove or deny �ke variances �4..4.. LL.. based on Minnesota Statute 462.357, Subdivision 6, as it ma� be amended from time to time. Conditions €e� of approval that are direcdy related to and beax a rough vro�ortionalit� to the im�act created b� the variance may be attached to any variance granted. E. GeneYally: Notice of requirement and procedures that are set forth in this section in excess of those required by state law are directory. Failure to comply with such procedures will not invalidate the proceedings. (Ord. B, 9-19-1989) F. Appeal: Within ten (10) working days of the action of the Board of Appeals and Adjustments, the applicant, the zoning administrator, a member of the City Council or any person owning property or residing withixi three hundred fifty feet (350') of the property affected by the decision may appeal the decision to the City Council. The appeal must be filed with the planning department. (Ord. B-20, 5-19-1992) G. Findings: The Board of Appeals and Adjustments and the City Council, upon appeal, must find as follows in the granting of a variance from this tide. Variances ma� be �ranted when the a��licant for the variance establishes that thexe are �ractical difficulties in com�l with the zoning ordinance. Economic considerations alone do not constitute �ractical difficulties. 1. The variance Yec�uest is in harmon� with the �ut�oses and intent of the ordinance. 2. The variance is consistent with the com�rehensive �lan. 3. Grantin�of the variance allows reasonable use of the �ro�ertv_. 4. There are unic�ue circumstances to the �ro�erty which are not created b� the landowner. 5. Grantin�of the variance does not alter the essential character of the localitv. H. Lapse and Reapplication: 1. A variance granted but not used shall become void one year aftex its effective date. 2. No application for the same ox substa,ntially the same variance shall be made within six (6) months of the date of denial. (Ord. B, 9-19-1989) 11-12-3: APPEALS TO CITY COUNCIL: A. The City Council shall have the power to hear and decide appeals where it is alleged by the appellant that there is an error in any fact, procedure, or firiding made by the Board of Appeals and Adjustments or the planning commission. B. Building permits shall not be issued after an appeal has been filed with the planning department. If permits have been issued before an appeal has been filed, then the permits axe suspended and construction shall cease until the City Council has made a final determination of the appeal. C. The City Council shall conduct a hearing witivn thirty (30) days after the receipt by the City Council of the appeal from the action of the planning commission. As provided in section 11- 12-2 of this chapter, the City Council shall give due notice of the hearing. The City Council shall render a decision on the appeal without unreasonable delay. Any person may appear and testify at the hearing either in person or by duly authorized agent or attorney. D. A fee to be established by resolution of the City Council shall be paid to the planning department by the appellant at the time the notice of appeal is filed. Such resolurion may provide for waivex or xefund of such fee under specific cixcuxnstances. (Oxd. B-20, 5-19-1992) Secrion 2. EFFECTIVE DATE This Ordinance shall be in full fotce and effect from and afteY its passage and publication according to law. ENACTED AND ORDAINED into an Ordinance this 16`'' day of August, 2011. CITY OF ROSEMOUNT Willia.m H. Droste, Mayor ATTEST: Amy Domeier, City Clerk Published in the Rosemount Town Pages this day of 2011. 1 LAWS of MINNESOTA for 2011 Ch. 19 CHAPTER 19—H.F.No. 52 An act relating to local government; providing for variances from city, county, and town zoning controls and ordinances; amending Minnesota Statutes 2010, sections 394.27, subdivision 7; 462.357, subdivision 6. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: Section 1. Minnesota Statutes 2010, section 394.27, subdivision 7, is amended to read: Subd. 7. Variances; �har�tship�ractical difficulties. The board of adjustment shall have the exclusive power to order the issuance of variances from the temTS requirements of any official control including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control and when the �arian�e variances are consistent with the comprehensive plan. Variances mav be granted when the applicant for the variance establishes that_ there are practical difficulties in complvinQ with the official control. "Practical dif�'iculties," as used in connection with the grantin� of a variance, means that the property owner ro oses to use the ro e in a reasonable manner not ermitted b an official control• the pli�ht of the landowner is due to circumstances unique to the propertY not created bv the landowner; and the variance, if granted, will not alter the essential character of the localitv. Economic considerations alone sha�t do not constitute practical difficulties. Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar ener�y svstems. Variances shall be granted for earth sheltered construction as defined in section 216C.06, subdivision 14, when in harmony with the official controls. No variance may be granted that would allow any use that is gra�ri�iteh not allowed in the zoning district in which the subject property is located. The board of adjustment may impose conditions in the granting of variances ia. A condition must be directiv related to and must bear a rou�h nroportionalitv to the impact created bv the variance EFFECTIVE DATE. This section is effective the dav followin� final enactment. Sec. 2. Minnesota Statutes 2010, section 462357, subdivision 6, is amended to read: Subd. 6. Appeals and adjustments. Appeals to the board of appeals and adjustments may be taken by any affected person upon compliance with any reasonable Copyright 2011 by the Oflice of the Revisor of Statutes, State of Minnesota. All Rights Reserved. Ch. 19 LAWS of MINNESOTA for 2011 2 conditions imposed by the zoning ordinance. The board of appeals and adjustments has the following powers with respect to the zoning ordinance: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative officer in the enforcement of the zoning ordinance. (2) To hear requests for variances from the requirements of the zoning ordinance includin� restrictions placed on nonconformities. Variances shall onlv be permitted when thev are in harmonv with the general purposes and intent of the ordinance and when the variances are consistent with the comprehensive plan. Variances mav be granted when the applicant for the variance establishes that there are practical difficulties in complyin� with the zoning ordinance. "Practical difficulties," as used in connection with the grantin� of a variance, means that the propertv owner proposes to use the property in a reasonable manner not permitted bv the zoning ordinance; the plight of the landowner is due to circumstances unique to the property not created by the landowner,i and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute �ractical difficulties. Practical difficulties include, but is are not limited to, inadequate access to direct sunlight for solar energy 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 use that is not pernritte� allowed under the zonin� ordinance for property in the zone where the affected person's land is located. The board or governing body as the case may be, may permit as a variance the temporary use of a one family dwelling as a two family dwelling. The board or governing body as the case may be may impose conditions in the granting of variances A condition must be directly related to and must bear a rough proportionality to the impact created by the variance. EFFECTIVE DATE. This section is effective the dav followin� final enactment. Presented to the governar May 2, 2011 Signed by the governor May 5, 2011, 3:03 p.m. Copyright 0 2011 by the Oflice of the Revisor of Statutes, State of Minnesota. All Rights Reserved. o� j oF CONNECTING INNOVATING MINNESOTA SINCE 1913 CITIES 2011 Variance Legislation The changes, which are now in effect, may require some cities to change ordinances or statutory cross-references. After a long and contentious session working to restore city variance authority, the final version of HF 52 supported by the League and allies was 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 Stututes, 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 Learn More the governor's approval. Presumably it applies to pending applications, as the general rule is that cities are Read more about variances in: to apply the law at the time of the decision, rather than at �and Use variances: Frepuentiv the time of application. Asked Questions 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." 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. Consult your attorriey for advice concerning specific situatioris. LEAGUE OF MINNESOTA CITIES 145 UNIVBRSITYAVE. WEST PHONE: (6S1) 281-1200 Fnx: (651) 281-1298 I N S U RAN C E T RU S T S'f. PAUL, MN 55103-2044 TOLL FREE: (HOO) 925-112Z WEB: W W W.LMC.ORG 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 that mirrors the new statute. Attached are a collection of sample documents reflecting the 2011 variance legislation. The attached samples include a draft ordinance, application form, and findings of fact template. While the attached materials may contain provisions that could serve as models in drafting your own documents, your city attorney would need to review prior to council action to tailor to your city's needs. Your city may have different ordinance requirements that need to be accommodated. 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@Imc.org or (651) 281-1247, or Tom Grundhoefer, LMC general counsel, at tgrundho@lmc.org or (651) 281-1266. Jed Burkett 06/11 2