Variance Appeals

The City Council will be asked to review appeals on two variance decisions that the Planning Commission recently made.  The purpose of this discussion is not on the two cases (one will be on tonight's regular agenda and one on the 10/14 agenda), but rather the variance process and the criteria used for reviewing an appeal.  

First, variances are authorized by State Statutes to grant relief from dimensional zoning standards such as setbacks, heights, widths, area, or the like when they are impossible or impractical to meet.  Zoning Codes try to treat all properties within a classification (a zoning district) the same, although every piece of land is unique.  Sometimes, the uniqueness of the land does not adapt well to a particular dimensional regulation. Variances cannot be granted for uses.  Minnesota State Statutes 462.357 Subd. 6 outlines a series of legal justifications that can be used for variances that are called "practical difficulties."  Ramsey's Zoning Code Section 106-220 has those practical difficulties verbatim, plus one additional practical difficulty that was added due to the various Highway 10 reconstruction takings:

106-220 - Variances.
(a) Variances shall only be permitted when they are in harmony with the general purposes and intent of this chapter and when the variances are consistent with the comprehensive plan.
(b) Public hearing notice mailing distance is 350 feet.
(c) Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning code. "Practical difficulties," as used in connection with the granting of a variance, means:
     (1) That the property owner proposes to use the property in a reasonable manner not permitted by the zoning code;
     (2) The plight of the landowner is due to circumstances unique to the property not created by the landowner;
     (3) The variance, if granted, will not alter the essential character of the locality.
     (4) Economic considerations alone do not constitute practical difficulties;
     (5) Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems; and
     (6) Public takings of property due to condemnation.
     (7) Variances shall be granted for earth sheltered construction as defined in Minn. Stats. § 216C.06, subd. 14, when in harmony with this chapter.
(d) The planning commission may not permit as a variance any use that is not allowed under the zoning code for property in the district where the affected person's land is located.
(e) The planning commission 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.
(f) The planning commission shall serve as the final decision-making authority. However, any action of the planning commission may be appealed to the council by any affected person if notice of such an appeal is received by the zoning administrator within ten days of the final action of the planning commission.
(g) The variance is approved by resolution.
(h) Recording of variance. A certified copy of a variance resolution shall be recorded with the Anoka County recorder or registrar of titles for record. The variance resolution shall include the legal description of the property included. No building permit shall be issued until after recording is made.
(i) Additional standards for variances within the Mississippi River Corridor Critical Area Overlay District are found in section 106-910.

When an applicant makes a variance request, the burden is on them to provide justification for the variance.  Staff recommends that they address their requests in a question-response format based on each of the practical difficulties.  Not all practical difficulties will be met on any request—only one is necessary, though use of multiple practical difficulties can make a stronger case.  Variances can only be granted based on a practical difficulty.  Staff will review the applicant's responses and provide a recommendation to the Planning Commission.  

The Planning Commission holds a public hearing for all variance requests.  The granting of a variance can be seen as "breaking a rule," so that must be done in a public format.  Mailed notifications are sent to property owners within 350 feet of the property where the variance is being requested, a "proposed development" sign is placed on the subject property, and a legal notice is published in the Anoka Union Herald (the City's official newspaper).  Staff encourages applicants to discuss the request directly and informally with neighbors.  

At the public hearing, City staff will introduce the request, noting the dimensional standard that is not being met and the practical difficulty that the applicant is using to justify the variance.  The applicant then adds any additional commentary.  The Planning Commission will ask clarifying questions of the applicant and/or staff before opening up the public hearing where members of the public may speak in favor or opposition of the variance request.  

After the public hearing is closed, the Planning Commission takes all the information (written and verbal) and discusses the merits of the application in a quasi-judicial manner.  They are judging the responses the applicant provided to the practical difficulties (and any other pertinent information that may arise) as sound.  They are making sure that there is no reasonable legal way of doing what the applicant is intending without the need for a variance. 

The Planning Commission is also authorized to attach reasonable conditions to a variance (subsection e) that could help "soften" the variance.  Sometimes, adding landscaping or fencing can reduce the potential visual impact of a variance and, therefore, can be a tipping factor in approving a variance.

The last step is a vote on the request.  The Planning Commission wears the "Board of Appeals" hat that is authorized by State Statutes as a final decision maker.  The Planning Commission passes a resolution that is attested by the City Clerk and will be recorded against the property with the County Recorder to remain on the property's title.   

Appeals
City Code, however, has a clause that essentially transfers that Board of Appeals hat from the Commission to the City Council when someone feels that the Commission's decision was made incorrectly.  An appeal must be made within 10 days and should include the reasoning why the Commission erred in applying the practical difficulties.  Appeals can be made by anyone—an applicant that was denied who wants another run at the request; a neighbor who may not want to live near the end result; or any member of the public.    

When hearing an appeal of the Planning Commission's decision, the Council needs to review the applicant's original request and then any supplemental information provided in the appeal request to determine if the Commission's application was justified.  Though the City Council has a little more leeway than the Planning Commission on many land use application motions, the Council should stick to the same standard of review as the Planning Commission, since the Council's decision can be appealed to the courts.  The courts will make sure that the standards did not change throughout the course of the applicant's variance request.  Again, variances need to be justified though identified practical difficulties as outlined in City Code and State Statutes.  


 

None at this time.

None at this time.