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Changes in variance law will have impact on city

VarianceRuling_081210.mp34.73 MB
The Minnesota Supreme Court has recently interpreted variance laws used by most cities in a way that leaves governments and homeowners between a rock and a hard place. Grand Marais City Attorney Chris Hood said there are factors or criteria that must be used in granting or denying a variance.
Hood: Those factors or criteria are called the “undue hardship test.” Under the prior legal standard that was established by the Court of Appeals in 1989, the undue hardship test, one of the prongs, the reasonableness prong, basically required that you show that the use was reasonable. So, under the old standard, which was a relatively lenient standard, or a standard that, I guess, would be fairly easy to meet, now under the Supreme Court’s new interpretation overruling that, however, the Court has basically said that cities do not have the legal authority to grant variances anymore unless that applicant for a variance can specifically show that the property cannot be put to any reasonable use without the variance. So, that is a much stricter standard.
 Hood told the city council Wednesday they would need to incorporate the stricter language regarding undue hardship into their city code. Beyond that they had two choices to soften the blow to property owners. They could wait until there is legislative action or they could look at the city’s zoning code to make it more flexible and in line with what Hood called “the city council’s current vision for the community.
The council favored the suggestion of councilor and planning commission member Tim Kennedy.
Kennedy: Considering how dramatic this change is to how we deal with variances in the city, I do think we need to look at some alternative language in our ordinance that would allow us some flexibility in granting variances. I would make a motion to refer this issue back to the planning commission, one to consider the alternative language that Chris has suggested and also to consider an amendment to the ordinance which would allow an alternative setback.
City Administrator Mike Roth said he couldn’t think of any recent variance that would meet the new interpretation of the law. The ruling’s impact had an immediate consequence at Wednesday’s meeting. A city setback variance had been recommended by the planning commission for an addition to a vacation and retirement home on a wooded lot.
Councilors were in the unenviable position of having to deny the variance, realizing if the request had come before them at their last meeting, it could have been granted.