HomeMy WebLinkAbout5. City Attorney - Zoning QuestionsCity of Rosemount — Zoning Questions /Answers
1. What is the appropriate standard for granting a variance?
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The legislature enacted a new law on May 6, 2014 relating to a city's authority to
grant variances. The new statute was in response to a decision (Krummenacher v.
City of Minnetonka) issued by the Minnesota Supreme Court in June 2010.
Under the new statute, "... [v]ariances shall only be permitted when they, are in
harmony with the general purposes and intent of the ordinance and when the
variances are consistent with the comprehensive plan. Variances may be granted
when the applicant for 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, means that 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 b
landowner and the variance, if granted, will not alter the essential character of the
locality. Economic considerations alone do not constitute practical difficulties ... The
board or governing body as the case 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."
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Variance findings should address the following issues:
- 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 the 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?
2. May a variance decision be, based on public input or lack of interest by the
public?
A planning commission or city council may certainly accept public input on a zoning.
application. However, neighborhood opposition or support should only be considered to
the extent that the public input is factually relevant to the criteria under the City's
ordinances and state law. For example, if an abutting property owner has factually -
supported and verifiable information relating to circumstances that may have been
created by the landowner or how the variance will alter the character of the area, those
factors may be properly considered. Public opinion - alone (either objection or consent),
however, should not be the basis for either an approval or a denial of a variance. In
general, statements of public opposition should not be a finding of fact listed as a reason
for denying a variance or any other kind �of zoning application. If a variance application
meets the requirements of the City's ordinance and state statute, it must be granted,
despite the disapproval'of the neighbors.
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3. If the Planning Commission or City Council supports a variance application, but
there are no "practical difficulties" for the applicant in complying with the
ordinance, how should that be handled?
If there are no "practical difficulties" for an applicant in complying with the city's
ordinances, then a variance application may not'be the appropriate mechanism to deal
with the circumstances. If the use being requested in the variance application is
something that is not objectionable to the Planning Commission or the City Council, it is
best for it to be addressed through an ordinance text amendment that would simply permit
the use — rather than going through the variance process. In all cases, the variance criteria
should be applied consistently and uniformly to all applicants, and, unless the applicant
can meet the criteria under the statute and the City's ordinance, the application should be
denied.
4. What role does the comprehensive plan designation` play in approving 'or
denying a project?
The comprehensive plan is a "compilation of policy statements, goals, standards, and
maps for guiding the physical, social and economic development, both private and public,
of the municipality ..." Minn. Stat. § 462.352, subd. 5. A comprehensive plan
include several elements, such as a transportation plan, community facilities plan, and a
parks and open space plan.
Once a plan is adopted, it becomes a factor in local officials' decision - making. The plan
is the policy statement for the future development of the city. In the metropolitan area,
cities are required to take steps to ensure that their official controls (subdivision
ordinances, zoning ordinances, capital improvement programs, etc.) do not conflict • with
the comprehensive plan. If inconsistencies exist, cities must either amend the plan or
amend their official controls to remove the inconsistencies.
The comprehensive plan also should act as a guide to the Planning Commission and City
Council for development projects as it administers the zoning and subdivision ordinances.
If a proposed project or application is consistent with the designation of the property in
the comprehensive plan, the project or application cannot be denied or rejected on the
basis that the Planning Commission or City Council does not agree with the
comprehensive plan designation. In that situation, the City Council must first amend the
comprehensive plan (after review and comment by the Planning Commission) to change
the designation of the property.
5. What is the appropriate basis for placing conditions on an approved project?
The time to, impose conditions and address concerns of an application is during the
preliminary approval stage. During this initial stage, the City has the most discretion in
evaluating the application under its ordinance requirements. Any conditions imposed on
the applicant must be designed to ensure compliance with the City's ordinance and set the
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guidelines under which final approval can be obtained. Conditions must be "reasonably
related" to the regulations and requirements contained within the City's ordinance. An
example of a condition that would not be "reasonably related" to the regulations and
requirements of the City's ordinance would be to require that all buildings in a
subdivision install solar panels as this is not a requirement that is currently in the City's
ordinance. This condition is also not "reasonably related" to any other provision in the
City's ordinance.
The City also must follow the standards and requirements of its ordinance. For example,
the City may not require as a condition of a plat approval that a local street be 70 feet
wide because the minimum street width in the City's ordinance for local streets is only 60
feet. Even though the City may desire a wider street under the circumstances, it cannot
require it as a condition because the City's ordinance does not require it.
6. What is the level of discretion does the City have for certain land --use and zoning
related decisions?
Public officials have varying levels of discretion in acting upon land use and. zoning
applications. The following is a brief summary of the more common applications.
Comprehensive Plan Amendments and Rezoning. Cities have the most for
these types of applications because the 'decisions are legislative in nature. A decision to
approve or deny an amendment to the comprehensive' plan or an application to rezone
property must be reasonable and -must be factually supported. As long as the Planning
Commission and City Council can articulate a rational basis for its decision, it is likely to
withstand legal challenge.
Subdivision/Plat Application: The City has the most discretion in evaluating a
plat/subdivi §ion application in the preliminary stages. It must be reviewed under the
ordinance requirements, but conditions can be imposed to ensure compliance with those
requirements. After preliminary approval, however; discretion is much more limited.
Changes after that should be limited to either meeting'. conditions of approval or to
meeting certain legal requirements under the City's ordinance and state or federal law.
Permitted Uses. Permitted uses ,are those uses that the 'zoning' ordinance permits as a
matter of right without further need for review`or approval by the City. The City may not
impose additional conditions on a permitted use if it fits the standards of the City's
ordinance. If, during the operation of that use; the City changes its ordinance and the use
is no longer permitted in that zoning district, the use must be allowed to continue as a
legal non - conforming use so long as it meets the conditions for non - conforming uses
under the City's ordinance and state statute. In the event the City's ordinance contains
performance standards for a permitted use or if the use is in violation of other provisions
of the City's ordinance (such as the nuisance provisions), the City may take enforcement
action against the property if there is a violation.
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s Conditional Use Permit ( "CUP "). Conditional uses are those uses that the zoning
ordinance permits if certain conditions set forth in the City's ordinance are met. Once
granted, a CUP runs with the land and can only be "revoked if the use ceases for a certain
amount of time or if conditions of the CUP are violated. The City must grant a CUP if
the applicant satisfies all of the conditions and requirements under the ordinance and the
proposed use will not be detrimental to the health, safety, and welfare of the public.
Neighborhood opposition alone to a CUP does not authorize the City to deny a CUP
application. Also, a CUP's conditions may not be unilaterally changed by the City unless
the conditions of the CUP have been violated.
Variance. Variances are exceptions to the rules set forth in a zoning ordinance. They
typically relate to physical standards, such as setbacks or height limitations. Essentially,
a variance allows a property owner: to depart from the rules that would otherwise apply.
The standard and criteria for a variance are described in Question No. 1 above.
7. What are interim uses?
Interim uses are those uses that the zoning ordinance permits for a limited amount of time
if certain conditions set forth in the City's ordinance are met. An interim use permit
( "IUP ") is issued to the applicant by'the City for these types of uses. Pursuant to the
City's ordinance, an IUP shall terminate on the happening , of any of the following events,
whichever first occurs:
1. The date stated on the IUP;
2. Upon violation of the condition under which the IUP was issued; or
3. Upon change in the City's zoning regulation which renders the use non-
conforming.
8. If a Planning Commissioner or a City Council members meets with an applicant
prior to the public hearing or the Council meeting, what should he or she be aware
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When meeting with applicants, Planning Commissioners and City Council members
should be aware of the recent case entitled Continental Property Group, Inc. v. City of
Minneapolis which was decided in May of this year. In this case, the Minnesota Court of
Appeals found that the city's decision to deny a develope "r's, applications for conditional
use permits, variances and site plans was arbitrary and capricious. Specifically, the court
found that one of the council members who participated in the decision had: (1) taken a
position against the development prior to the (2) exhibited a closed mind prior
to the hearings on the applications; (3) taken an advocacy role in opposing the project
before the hearing; and, (4) been involved in not only organizing neighborhood
opposition to the project but also in persuading her council members to vote against the
project. Based on those facts, the court decided that the city council had relied on factors
that were not allowed to be considered in denying the conditional use permit and variance
applications.
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The primary lesson arising of this case is that Planning Commissioners and 'City Council
members must exercise care in all matters that require a hearing prior to a•decision, and
in particular in quasi-judicial matters, such as conditional use permits and variances. If
Planning Commissioners and City Council members publicly announce or discuss strong
opinions about an application` before the matter comes before the entire body, those
decision- makers might be prohibited from participating in the decision or the decision
could be struck down if challenged laier. This consideration is in addition to any
"common law" conflict of interest situations a Commissioner or Council member may
find him or herself in if he or she has a direct interest in the outcome of a matter before
the Commission or the Council.
Therefore, when meeting with an applicant, Planning Commissioners and City Council
members should not express their opinions about the application to the applicant or their
position, but may ask questions relating to the application and request additional
information. It is important that Planning Commissioners and City Council members not,
appear to be closed- minded when discussing the application with the applicant.
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