The variance rollercoaster ride may be at an end

Cities have the authority to adopt zoning ordinances that regulate the use of land within the city.  This means that a city can regulate, among other things, the size and location of structures.  Sometimes a property owner wants to make improvements that are not allowed by a city's regulations, e.g., making a deck of a house bigger.  If the zoning code does not allow the deck to be any bigger a variance is needed (a variance requires City Council approval).  In the last year the laws that govern when a variance can be granted have been on a wild rollercoaster ride and that ride may have finally come to an end.

Last Friday, May 5, 2011, Governor Dayton signed 2011 Minn. Laws. Ch. 19 (HF 52/SF 13), which amended Minn. Stat. sec. 462.357, subd. 6.  The amendment became effective on May 6, 2011 and is a direct response to the Supreme Court's decision in Krummenacher v. City of Minnetonka, 783 N.W.2d 721 (Minn. 2010).  The new legislation provides for variances from zoning codes to be granted upon a property owner establishing, among other things, that there are practical difficulties is complying with the zoning code.  "Practical difficulties" is now defined as the "property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance."  

Variances from a city's zoning ordinance are found in Minn. Stat. sec. 462.357, subd. 6, which requires, among other things, that a variance may only be granted if there is a "undue hardship."  "Undue hardship" was defined in the statute "as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls, 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."  

In 1989, the case of Rowell v. Board of Adjustment of the City of Moorhead, 446 N.W.2d 917 (Minn. Ct. App. 1989) and subsequent Court of Appeals cases, held that the variance standard had a three factor test:  (1) reasonableness; (2) uniqueness; and (3) essential character.  Basically, there was an interpretation that undue hardship meant whether the request is reasonable.  This had the cities reviewing the reasonableness of the proposed use not reasonableness of how the property is currently being used.  The 2010 case of Krummenacher overturned 21 years of law and practice in Minnesota by determining that the Rowell decision was wrong and that the Statute must be read literally.  The analysis changed from whether the request is reasonable to whether the property is put to reasonable use without the variance.   Krummenacher has effectively been a bar for the granting of variances and has taken discretion away from the cities.  Its practical effect has been, for example, if you have a house on your property and you want to expand a deck 2 feet into the set back the city cannot grant the variance because the land owner has reasonable use of the property, i.e., they have a residence that can be used without the variance.  Is does not matter if the city and landowner think that the expanded deck is a good and reasonable idea.  

The new legislation replaces the undue hardship requirement with a requirement of practical difficulties.  It in effect codifies the Rowell standard.  This means that there is no longer an effective bar for the granting of variances.  Now, instead of inquiring whether there is reasonable use of the land, we look to whether the use is reasonable.