Minnesota Supreme Court Varies the Guidelines for Granting Variances
In June 2010, the Minnesota Supreme Court issued a decision, Krummenacher v. City of Minnetonka, that significantly impacts the ability of municipalities in the State to grant variances from its zoning ordinances.
A variance is a requested deviation from the set of rules a municipality applies to land use known as a zoning ordinance, building code or municipal code. A property owner requests a variance when an intended improvement to his/her property would otherwise violate the municipality’s land use regulations. Most often, it is a city or county that is called upon to issue a variance.
In Minnesota, the State grants municipalities the authority to enact zoning ordinances by statute “for the purpose of promoting the public health, safety, morals, and general welfare”. In addition to granting zoning authority, however, Minnesota law places restrictions on the use of such authority.
Over time, as the character of a municipality changes, zoning ordinances can change. Nonetheless, when a condition on a property exists which does not comply with the current zoning ordinance, it is said to be a “non-conforming use”. That classification does, not, however, mean that the condition must be brought into compliance with the current ordinance; rather, the non-conforming use is in effect “grandfathered” in by the fact that it complied with the prior zoning ordinance.
Minnesota law places parameters on the manner in which a municipality deals with non-conforming uses under its zoning ordinance. Minnesota Statute Section 462.357, Subd. 1(e) provides that “any nonconformity, including the lawful use or occupation of land or premises existing at the time of the adoption of an additional control under this chapter, may be continued, including through repair, replacement, restoration, maintenance, or improvement, but not including expansion”, subject to certain statutory exceptions, one of which provides that “a municipality may, by ordinance, permit an expansion…” of a non-conforming use. The City of Minnetonka has such an ordinance, and it requires a variance to be granted by the City in order to expand a non-conforming use.
The issue decided in the Krummenacher case was what discretion the City of Minnetonka had to grant a variance so as to allow an expansion of a garage which did not conform with the setback requirements set forth in the City’s zoning ordinances. The property owner sought a variance to expand and improve a detached flat-roof garage located on her property. The garage, built in the 1940s, was setback 17 feet from the front yard line; the current minimum setback requirement was 50 feet.
When the neighboring property owner objected to the expanded garage (which was to include a pitched roof, together with a craft room and yoga room above the garage), he made his objection known to the Minnetonka City Council. When that didn’t work, he did what every red blooded American does in such a situation: he filed a lawsuit.
The District Court found nothing improper about the manner in which the City granted the property owner her requested variance; neither did the Court of Appeals (who affirmed the District Court’s finding in favor of the City). The Supreme Court, however, focused on the City’s finding of “undue hardship” which is required by Section 462.357, Subd. 6 upon which the grant of the variance was predicated. Under that provision, “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.”
The Supreme Court, repeatedly citing a legal doctrine known as the plain language rule (which says that if a law is clear and unambiguous, the plain meaning controls and cannot be disregarded under the pretext of pursuing the spirit of the law), found that the City did not apply the proper standard of “undue hardship” in evaluating the variance request. Instead, the City followed a test set out in a 1989 Minnesota Court of Appeals case, Rowell v. Board of Adjustment of Moorhead, 446 N.W.2d 917 (Minn.App. 1989) which interpreted Subd. 6 to mean that undue hardship existed if the applicant for the variance demonstrated that the “property owner would like to use the property in a reasonable manner that is prohibited by the ordinance.”
The Krummenacher case thus overruled the Rowell “reasonable manner” test and instead requires municipalities to evaluate a variance application under the plain language of Subd. 6. In this case, of course, the garage expansion will fail under that test due to the fact that a reasonable use – i.e., storage of vehicles – exists, the property owner’s desire for a yoga and craft room notwithstanding.
The Krummenacher Court did, however, provide a cue to the Minnesota Legislature as to how to remedy the result in this case: “unless and until the legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property cannot be put to a reasonable use without the variance.” In case you missed it, that’s judicial speak for “hey legislature, fix your dang statute.” It’s my understanding that groups such as the League of Minnesota Cities is lobbying for such a fix as we speak.