08-24-10 BZA Agenda
Board of Zoning Appeals/City Council/Planning Commission
Presentation by Assistant City Attorney
Standards for Granting Variances under Minnesota Law
Tuesday, August 24, 2010
6:30 pm
7800 Golden Valley Road
Council Conference Room
I. Assistant City Attorney Kim Donat will give a presentation regarding the standards for
granting variances under Minnesota law
Board of Zoning Appeals
Regular Meeting
Tuesday, August 24, 2010
7pm
7800 Golden Valley Road
Council Chambers
I. Approval of Minutes - July 27,2010
II. The Petitions are:
3335 Major Ave N (10-08-05)
Tim and Jean Mohr. Applicants
Request: Waiver from Section 11.21, Subd. 11 (A)(1) Front Yard Setback
Requirements
. 7 ft. off the required 30 ft. to a distance of 23 ft. at its closest point
to the front yard (west) property line.
Purpose: To allow for the construction of an open front porch.
III. Other Business
IV. Adjournment
BEST& FLANAGAN
225 SOUTH SIXTH STREET, SUITE 4000
MINNEAPOLIS, MINNESOTA 55402-4690
Telephone: (612) 339-7121
Telecopy: (612) 339-5897
MEMORANDUM
To: Allen Barnard
From: Kim Donat
Re: Standards for Granting Variances under Minnesota Law
Date: August 16, 2010
SUMMARY
We have been asked by Golden Valley about the appropriate standard for granting a
variance under Minnesota law in light of the Minnesota Supreme Court's recent decision in
Krummenacher v. City of Minnetonka, which overturns previous precedent and establishes a
strict interpretation of "undue hardship". In order to grant a variance, the applicant must show
"undue hardship" which means the applicant must show "the property in question cannot be
put to a reasonable use," without the variance.
ANALYSIS
State Statute and Golden Valley Ordinance
State Enabling Statute. Minnesota Statue 462.357, subd. 6(2) (2009) explicitly sets forth
the standard for granting variances from a zoning ordinance. This subsection gives a City,
through its board of appeals and adjustments, the power:
[t]o hear requests for variances from the literal provisions of the [zoning]
ordinance in instances where their strict enforcement would cause undue
hardship because of circumstances unique to the individual property under
consideration, and to grant such variances only when it is demonstrated that
such actions will be in keeping with the spirit and intent of the ordinance.
"Undue hardship" 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. Economic considerations alone shall not constitute an undue
hardship if reasonable use for the property exists under the terms of the
ordinance. Undue hardship also includes, but is not limited to, inadequate
access to direct sunlight for solar energy systems.
Id. (emphasis added).
Golden Valley Ordinance. The language of the state statute is often repeated verbatim
in the zoning ordinances of cities. The City's zoning ordinance tracks much of the state statute,
establishing a Board of Zoning Appeals with the power:
to hear requests for variances from the literal provisions of [the City zoning
ordinance] in instances where their strict enforcement would cause undue
hardship because of circumstances unique to the individual property under
consideration, and to grant such variances only when it is demonstrated that
such actions will be in keeping with the spirit and intent of [the City zoning
ordinance].
* * *
Section 11.90, subdivision 4.B.2.
Because a municipality has no inherent power to enact zoning regulations, and receives
its power to zone only by the legislative grant of authority from the state, it "cannot exceed the
limitations imposed by the enabling legislation." Haverhill Tp. v. County of Olmsted, 674
N.W.2d 781, 783 (Minn. Ct. App. 2004) (citing Costley v. Carom in House, Inc., 313 N.W.2d 21, 27
(Minn.1981)). Thus, the Golden Valley zoning ordinance, like all such municipal ordinances,
must implement and be confined to the standard articulated under the state enabling statue.
Previous Variance Standard
The state law variance standard, including the meaning of "reasonable use" under the
definition of "undue hardship", has been the subject of numerous Minnesota cases. The
Supreme Court of Minnesota recently decided a case which overturned the interpretation of
this language set forth by the Appellate Court in Rowell v. Board of Adjustment of the City of
Moorehead, 446 N.W.2d 917 (Minn. Ct. App. 1989). In Rowell, the court of appeals reviewed a
case brought by a group of residents of the City of Moorhead who lived near a church which
had been granted a setback variance to build a new addition to the church. The group objected
to the variance, arguing among other things that the church had failed to show "undue
hardship" as required under the city's zoning ordinance and state law. Affirming the earlier
decision for the city, the Rowell court explained that the requirement for a finding of undue
hardship under state law:
does not mean that a property owner must show the land cannot be put to
any reasonable use without the variance. In such a case the constitution
2
would compel a variance regardless of the statute. The statute is clearly
intended to allow cities the flexibility to grant variances in cases where the
constitution does not compel it. Thus. we read the first part of the definition
of 'undue hardship' as reauiring a showing that the property owner would
like to use the property in a reasonable manner that is prohibited by the
ordinance. [Emphasis added].
Id. at 922. The Rowell court acknowledged that the "statute and ordinances unfortunately
provide no standard for determining reasonableness." It stated, however, that "practical
difficulties may justify an area variance." Id.
The Minnesota Supreme Court refused to hear an appeal of the Rowell decision, and
this standard has subsequently been affirmed and restated in numerous court of appeals
decisions, including Sagtetter v. City of St. Paul, 529 N.W.2d 488 (Minn. Ct. App. 1995) (citing
Rowell and restating its interpretation of the statutory "reasonableness" standard); and Nolan
v. City of Eden Prairie, 610 N.W.2d 697 (Minn. Ct. App. 2000). This interpretation however was
recently rejected by the Minnesota Supreme Court, in Krummenacher v. City of Minnetonka,
which is further described below.
The New Variance Standard (effective June 24,2010)
In Krummenacher v. City of Minnetonka, JoAnne Liebeler applied for a variance to
expand a non-conforming, flat-roofed garage by adding a second story with a sloping roof that
would accommodate space for a yoga studio and classroom. Krummenacher, 783 N.W.2d 721,
*3 (Minn. 2010), 2010 Minn. LEXIS 336, *3. The original garage was built 17 feet from the
property line, and after it was built, Minnetonka instituted a 50 foot setback. Id. In March of
2008, Liebeler applied for a variance. Id. The addition would not alter the footprint of the
garage and would comply with Minnetonka's zoning requirements with respect to maximum
height and size. Id. at 4. There was a public hearing and both Liebeler and her neighbor,
Krummenacher, provided testimony to the Planning Commission. Id. at 5. Liebeler explained
that the flat roof was leaking and that the structure needed to be updated. Id. Krummenacher
objected because the added height to the garage would obstruct his view to the East. Id.
The Planning Commission approved Liebeler's request, based on the following findings:
a. the denial of a variance would cause "undue hardship" because of the
"topography of the site, width of the lot, location of the driveway and
existing vegetation";
b. the preexisting nonconforming setback was a "unique circumstance";
c. Liebeler's proposal would comply with the "intent ofthe ordinance"
because it satisfied the "zoning ordinance requirements for a detached
garaged for maximum height and size" and did not alter the footprint of the
garage; and
3
d. The proposal would not alter the "neighborhood character" because it
would "visually enhance the exterior of the garage" and because there was
another detached garage on a nearby property that was also set back only
17 feet from the road.
Id. at 4-5.
The Planning Commission's decision was appealed by Krummenacher to the City
Council. Id. at 5. The City Council upheld the Planning Commission's decision and
findings, and found that Liebeler's "proposal is reasonable and would meet the required
standards for a variance," Id. Krummenacher, brought suit in district court which upheld
the City's decision as not arbitrary or capricious. Id. at 6. The Court of Appeals affirmed
the district court's decision, and then Krummenacher appealed to the Minnesota
Supreme Court. Id. at 7.
Krummenacher argued in part that Minnetonka's decision to grant the variance was
arbitrary and capricious because Minnetonka failed to apply the correct standard to determine
whether Liebeler had demonstrated "undue hardship". Id.13.
Furthermore, Krummenacher argued that, "based on the plain and unambiguous
language of the statute, a municipality may grant a variance only when the property cannot be
put to any [as compared to "a"] reasonable use without it." Krummenacher at 16. Additionally
he argues that Liebeler had a reasonable use for her garage without the addition of a yoga
studio and craft room because she use it to store her vehicles. Id.
The court agreed with Krummenacher that the City did not apply the correct standard to
the first portion (the "reasonable use" portion) of the undue hardship test, stating, "The plain
language of the statute and our precedent compel us to reject the City's invitation to adopt
Rowell's interpretation of undue hardship." Id. at 17. The court stated its position as follows:
We are unable to interpret the statutory language to mean anything other
than what the text clearly says--that to obtain a municipal variance, an
applicant must establish that "the property in question cannot be put to a
reasonable use if used under conditions allowed by the official controls."
Minn. Stat. 9462.357, subd. 6.
Krummenacher at 30-31. The opinion then goes into a longer analysis about how the Court's
interpretation is tied to a 1969 decision, Curry v. Young, 285 Minn. 387, 173 N.W.2d 410 (1969)
and In re Stadsvold, 754 N.W.2d 323 (Minn. 2008). The Court uses these cases to justify a strict
interpretation of the undue hardship test and also analyzes a New Hampshire case: (1) to signal
that the Court understands the standard they have announced will, "result in a restriction on a
municipality's authority to grant variances"; (2) to perhaps signal its preference for a more
flexible standard as set forth in the New Hampshire Case (see Simplex Technologies, Inc. v. Town
of Newington, 766 A2d 713 (N.H. 2001); and (3) seemingly to encourage legislative action aimed
4
at easing the lIundue hardship" standard as compared to the current common law standard
announced by the court. Krummenacher at 18.
CONCLUSIONS
The Minnesota Supreme Court decision overturns the standard set forth in Rowell. The
courts reliance on a IIplain language" argument seems suspect where the ambiguity in the
statute has been interpreted differently from the Krummenacher holding for over twenty years.
Regardless the new standard is law and cities and planning commissions will need to adjust their
standard of review accordingly. The BZA and the City Council should now make the following
findings before granting a variance:
A. Strict enforcement ofthe zoning ordinance would cause undue hardship because
of circumstances unique to the individual property under consideration. Undue
hardship means:
a. the property in question cannot be put to a reasonable use if used
under conditions allowed under the zoning ordinance,
b. the variance request is due to circumstances unique to the property
not created by the landowner, and
c. the variance, if granted, will not alter the essential character of the
locality.
B. And, the variance will be in keeping with the spirit and intent of the City zoning
ordinance.
See Krummenacher at 12. (emphasis added).
In addition, Golden Valley should track and discuss this issue with its lobbyists, because it
appears that the League of Minnesota Cities or some other entity may try to modify the statute
language in the next session.
Finally, the case does confirm that a city can authorize the expansion of a non-
conforming use so long as it does so by ordinance. Some commentators1 have argued this case
could have been avoided if Minnetonka had not used the variance process for approval of
expanding non-confirming uses, but had used some other process, under which the variance
standard did not apply. Therefore the City might be able to avoid some of the difficulties of the
changed variance standard by adopting a new, separate process and ordinance for all
expansions of non-conformities.
000090/480568/1214106_4
1 See Oliver, Trevor, "Variance Law Clarified by Supreme Court",
http://minnmunilaw . wordpress.com/20 1 0/06/25/variance-Iaw-clarified-by-supreme-court/ (June 25, 20 I 0).
5
Minutes of a Regular Meeting of the
Golden Valley Board of Zoning Appeals
July 27,2010
A regular meeting of the Golden Valley Board of Zoning Appeals was held on Tuesday,
July 27,2010 at City Hall, 7800 Golden Valley Road, Golden Valley, Minnesota. Chair
Segelbaum called the meeting to order at 7 pm.
I. Approval of Minutes - June 22, 2010
ase that talked about the
viewing variance requests.
operty cannot be put to a
. ial controls, 2) the plight of the
perty nd not created by the landowner,
h entia I character of the locality. He said
e stan. ards but according to the City Attorney
sing the Semper Development proposal on this
standards because the original variance
e cou ruling. Kisch added that it is his understanding
'ng the Board of Zoning Appeals at a future meeting.
Those present were Members Kisch, Nelson, Segelbaum, Sell and Pia
Representative Cera. Also present were City Planner Joe Hogeboo
Assistant Lisa Wittman.
MOVED by Sell, seconded by Nelson and motion carri
minutes as submitted. Cera abstained from voting
Segelbaum referred to a recent Supreme Co
standards that apply when City's consider
He summarized the definition of hardshi
reasonable use is used under conditi
landowner is due to circumstance
and 3) the variance if granted wil,
the court case appears to ha
the Board of Zoning Appe
agenda, should consider
application was submitted
that the City Attorne
II.
530 Winnetka Ave N (10-06-04)
ment Ltd A Iicant
Waiver from Section 11.70, Subd. 3 Off-Street Parking
Requirements
. 9 parking spaces off the required 58 parking spaces for a total of
49 parking spaces
Purpose: To allow for the construction of a Walgreens store.
Hogeboom reminded the Board that Semper Development was on their agenda last month
with a request for a front yard variance to allow for the proposed building to be constructed
closer to Winnetka Avenue than required. At that meeting the Board tabled the request
Minutes of the Golden Valley Board of Zoning Appeals
July 27,2010
Page 2
and indicated to Semper Development that it may look more favorably at allowing a
reduction in the number of required parking spaces instead of the requested front yard
variance. Hogeboom referred to a revised site plan and explained that the applicant has
moved the proposed building further to the east and reduced the number of parking stalls
required. He explained that this revised proposal also eliminates the access driveway on
Rhode Island Avenue so the only access points to this property are on Winnetka Avenue.
Hogeboom explained that the applicant will also have to go b
Commission and City Council for their Lot Consolidation reque
Permit request.
e the number of
ed tha the applicant will
ode Island access issue
rocess. Segelbaum asked if
would go over an easement.
, property.
Hogeboom referred to the City's parking requirements and explained that
require 1 parking space per 250 square feet of retail space so the requ'
proposal would be 58 parking spaces. The applicant is proposing to v
spaces, which staff supports.
Segelbaum asked if the closure of the Rhode Isla
steps in the approval process. Hogeboom said n
have to go through the same approval proce
would have been looked at as a part of th
the remaining accesses are on the own
Hogeboom stated that both accesse
Segelbaum asked if the setback.
right-of-way by the County. H
taking of additional right-of
e applicant's plans reflect the taking of
e plans take into account the County's
Segelbaum asked if the C'
place for many yea
quite some time and
number of req a
ing requirements are current or if they have been in
aid the parking requirements have been in place for
here has been a trend in some cities to reduce the
John Koh
propose
be adequ
pment, Applicant, stated that Walgreens has reviewed the
ail and they feel having 49 parking spaces on this property will
is proposed Walgreens compares in size to the Walgreens store on 42nd
New Hope and the store on Cedar Lake and Louisiana in St. Louis Park.
Kohler sai e proposed Golden Valley store will have approximately 11,000 square feet
of retail space which is similar to both of the stores Sell referenced. Sell said he has
looked at the parking at the Walgreens in New Hope and there have never been more
than 15 cars parked in the parking lot, however the drive-thru traffic was fairly steady. He
said he feels comfortable with the 49 ftarking spaces being requested. Nelson asked
about the size of the Walgreens at 50 h and France. Kohler said that store is 7,000 square
feet and has 13 parking spaces.
Minutes of the Golden Valley Board of Zoning Appeals
July 27,2010
Page 3
Cera referred to Walgreens stores that have 2 stories and asked if those stores have a
smaller footprint and if that option was considered in this case. Kohler said the footprint of
the 2-story building is slightly smaller but not small enough to be able to fit more parking
spaces on the site.
Sell asked where the store's merchandise would be delivered. Kohler stated there is no
loading dock, just a delivery door and that a truck would pull up along the south side of the
building to unload merchandise once a week.
Kisch referred to the site plan and asked if the Fire Department or E
Department has reviewed the proposed turning radius around the'
said the Fire Department and Engineering Department have rev
Kohler added that they are still fine tuning the island area but
turning radius requirements.
ing other adjacent properties for
purc asing adjacent properties but it
Ib asked if Walgreens is continuing to look
said no to his knowledge.
Kisch asked about the actual impact on traffic. Hoge
most concerned about traffic turning on Medicine
Walgreens store severely impacting traffic. Kohle
tends to be more of a trickle and does not pr
might.
Segelbaum asked if Walgreens has c
this proposal. Kohler said Walgre
made the project too cost prohib'
at purchasing adjacent prope
Segelbaum opened the p
Segelbaum closed the pub
ing and hearing no one wishing to comment,
eeting he has been paying more attention to
algreens are typically located on a corner and in this
e applicant didn't purchase the corner property because the
. I work better with the store placed further away from the
or of the proposal since the traffic will be more sporadic and not
Nels
a good
front of bUl
is also in favor of the proposal and feels like the applicant came back with
Ian. She added that she doesn't like looking at a "sea of asphalt" in the
gs so she is happy with this proposed plan.
Kisch said he feels a hardship was forced upon the applicant in this case because of the
City's parking requirements and the so called need for more parking. He said he feels a
reduction in the amount parking is better because it reduces in the amount of impervious
surface by 2% and will increase the amount of landscaping. He said he is in support of
granting the variance request and feels it is an improved plan compared to the original
proposal.
Minutes of the Golden Valley Board of Zoning Appeals
July 27,2010
Page 4
Cera said he agrees with Kisch. He said he thinks the proposed design works and it is nice
to see an applicant work with the Board of Zoning Appeals.
Segelbaum referred to the criteria used when deciding on a variance request and noted
that the plight of the landowner in this case was not created by the landowner, the
proposal won't alter the locality, in fact it would improve the locality, and it is a reasonable
request in light of its use and impact so he is also in favor of granting the variance.
No other business was discussed.
III. Other Business
MOVED by Kisch, seconded by Nelson and motion carried unanimousl
following variance request: 9 parking spaces off the required 58 par . g
total of 49 parking spaces.
IV. Adjournment
The meeting was adjourned at 7:37 pm.
Joe Hogeboom, Staff Liaison
10-08-05
3335 Major Avenue North
Tim and Jean Mohr, Applicants
Planning
763-593-8095 I 763-593-8109 (fax)
Date:
From:
August 18, 2010
Golden Valley Board of Zoning Appeals
Joe Hogeboom, City Planner
3335 Major Avenue North
Tim and Jean Mohr, Applicants
To:
Subject:
Background
Tim and Jean Mohr are the owners of the property located at 3335 Major Avenue North. The
Mohrs are requesting a variance from the Zoning Code to construct a roof over the existing
concrete steps in front of their home. The concrete steps are located in the front yard setback
area. The proposed roof, as well as the columns used to support the roof, would effectively
transform the stoop into an 'open front porch.'
For all residential properties in Golden Valley, open front porches may extend no closer than
30 feet toward the front yard property line. The existing front stoop for this property extends to
a distance of 23 feet at its closest point to the front yard property line. It should be noted that
most homes along Major Avenue North are located closer to the front property line, as
evidenced by the attached aerial image of the area.
In 1997, variances were granted to the property that allowed for the construction of an addition,
as well as for the construction of a roof over the front steps. While the addition was completed,
the work to the front steps has never occurred. Unless extended by an act of the City Council,
variance waivers expire one year from the date of issuance if not acted upon. A copy of the
variance material from 1997 has been attached for your reference.
Variance Requested
The proposal requires a variance from the following section of City Code:
. Section 11.21, Subd.11(A)(1) Front Yard Setback Requirements.
City Code requires a distance of 30 feet between a deck or an open front porch and the front
yard property line. The applicant is requesting 7 feet off of the required 30 feet to a distance of
23 feet between the closest point of the proposed front porch and the front yard property line.
Recommended Action
In June, a similar variance request (for a property on Kyle Avenue) was presented to the
Board. The Board, at that time, granted the variance as requested by the applicant. The Board
found that the request seemed logical and had no impact to the surrounding properties.
However, the recent Supreme Court ruling of the Krummenacher v. the City of Minnetonka has
impacted ways in which variances can be granted. Among other things, the Krummenacher v.
the City of Minnetonka ruling has brought the following component of undue hardship into
greater consideration:
"The property in question cannot be put to a reasonable use if used under
conditions allowed under the zoning ordinance."
Although the Mohrs' request, in the opinion of staff, would not alter the essential character of
the locality, another qualifier for determining hardship, the request does not demonstrate that
the property cannot be put to a reasonable use if the variance is denied. For this reason, in
keeping with ruling of the Minnesota Supreme Court, staff recommends denial of this variance.
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To whom it may concern:
07-23-10
I am requesting, in writing, the reason in which I would like a variance issued for an
overhang over our front steps. First, and most important, whenever it rains we get water
leaking into the room under the front steps. I believe that an overhang would make a big
difference in helping to keep the water off the steps, but also keep the snow off the steps
in the winter. The overhang will be about 10' x 7'. I believe it will enhance the look of
the property. I went around to each neighbor that actually looks at our house from theirs
and showed them the picture of my idea. Everyone thought it was a great idea and signed
their approval.
We are excited about improving our property, but more excited to get the water problem
resolved.
Along with this letter is a picture of our existing steps and a picture of what we would
like to put up.
Thank you, for your consideration.
Tim and Jean Mohr
3335 Major Ave N.
Golden Valley MN 55422
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SURVEY FOR:
Tim & Jean Mohr
3335 Major Avenue No.
Golden Valley, Minnesota.
Jim !J(y'lO 8- d!-llOalaUl, {/nc.
55422
PROFESSIONAL LAND SURVEYORS
AND LAND DEVELOPMENT CONSULTANTS
(612) 421-9126
13621 VINEWOOD LANE
DA VTON. MN 55327
DESCRIPTION: Lot 3, Block 10, NOBLE GROVE,
City of Golden Valley,
Hennepin County, Minnesota.
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certify that this survey was prepared by me or under my direct supervision
am a duly Registered Professional Land Surveyor under the laws of the
innesota. Da ed April 15, 1997.
By
, Minnesota License No. 12267
'Jt211
City of Golden Valley
Board of Zoning Appeals (BZA)
Zoning Code Variance Application
1. Street address of property involved in this application:
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2.
Applicant:
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Name
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Business Phone
?63-S29-37b6
Home Phone
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City/State/Zip ,
6/2 -2--2/- 37/f?
Cell Phone
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Address
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Email Address
3. Detailed description of building(s), addition(s), and alteration(s) involved in this petition. The site
plans and drawings submitted with this petition will be the basis of any variance that may be
approved and cannot be changed before or after the building permit is issued.
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4. A brief statement of the hardship which provides legal grounds for the granting of this variance
(see Frequently Asked Questions for an explanation of a "hardship"). Attach letter, photographs,
or other evidence, if appropriate.
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5. To the best of my knowledge the statements found in this application are true and correct. I also
understand that unless construction of the action applicable to this variance request, if granted,
is not taken within one year, the variance expires.
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Signature of Applicant
By signing this form, you are only verifying that you have been told about the project, not that
you necessarily agree or object to the project. If you wish, you may comment on the project.
Comments can contain language of agreeing with the project, objecting to the project or other
statements regarding the project.
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