080410 PlanningENSEN ®ND LL ESELLIN, P.A.
Attorneys At Law
8525 EDINBROOK CROSSING, STE. 201
BROOKLYN PARK, MINNESOTA 55443 -1968
TELEPHONE (763) 424 -8811 $ TELEFAx (763) 493 -5193
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AMANDA M. FURTH
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GORDON L. JENSEN'
ADAM J. KAUFMAN
MELANIE P. PERSELLIN"
STEPHEN M. RINGQUIST'
STEVEN A.SONDRALL
July 28, 2010
Curtis Jacobsen
Community Development Director
City of New Hope
4401 Xylon Avenue North
New Hope, MN 55428
Re: Krummenacher v. City of Minnetonka
Minnesota Supreme Court Decision
Interpreting Variance Hardship Standard
Our File No.: 99 -10011
Dear Curtis:
Attached for discussion at the August Planning Commission meeting is the recent Minnesota
Supreme Court decision of Krummenacher v. City of Minnetonka filed June 24, 2010 (A08- 1988).
In a "nut shell" the case speaks to the definition of "undue hardship" when approving zoning code
variance requests. Also attached is an analysis of the decision from the League of Minnesota Cities
dated July 21, 2010.
As pointed out in the LMC article, this decision will be extremely problematic for municipalities to
approve property owner variance requests from any municipal zoning requirement. Specifically,
the decision states a municipality may not grant a zoning code variance unless a property owner
can show the property cannot be put to a reasonable use without the variance. The Krummenacher
case states lack of all reasonable use must be shown to establish an "undue hardship" justifying the
variance as that term has been legislatively defined by Minn. Stat. §462.357. This strict and
narrow interpretation of "undue hardship" overturns 20 years of legal precedent that defined
"undue hardship" to simply mean a reasonable use of the property prohibited by the zoning code
which was judicially defined previously as the "reasonable manner" standard, see Rowell v. Board
of Adjustment of Moorhead, 446 NW2d 917 (Minn. App. 1989). In other words, the Supreme
Court in Krummenacher v. City of Minnetonka has rejected and thrown out the "reasonable
'Real Property Law
manner" standard for variances set out in the Rowell case and used for the last 20 years for the
Specialist certified By
literal interpretation of the "undue hardship" standard legislatively defined in Minn. Stall.
The Minnesota State
Bar Association
§462.357.
'Licensed in Illinois /Colorado
'Qualified Neutral Mediator
under Rule 114
In my opinion, the Krummenacher case will make it almost impossible for the City to grant any
future variances. Certainly all developed property within the City is being put to a reasonable use.
As a result, an owner of any developed property requesting a variance will be hard pressed to show
"undue hardship" when the property under consideration already can be used for some reasonable
purpose. As for vacant property, I suspect it will be just as difficult to show "undue hardship ".
Obviously, every new variance request will be very fact - specific and as indicated in the LMC
memo the City Council will need to take great care to make detailed findings describing why the
July 28, 2010
Page 2
grant of a variance is necessary to provide the property owner with a reasonable use of his or her property. I am
looking forward to the continued discussion of this case at the August Planning Commission meeting.
Very truly yours,
Steven A. Sondral(
Enclosure(s)
cc: Kirk McDonald
P:\Attorney \SAS \l Client Files\2 City of New Hope\99 -1001 I (community development general) \Itr C Jacobsen re sup crt decision on variances.doc
Kruinmenacher V, Gity Of Minnetonka (Minn., 20 10)
Beat L. Krummenacher, Appellant,
V .
City of Minnetonka, Respondent,
JoAnne K. Liebeler, Respondent.
A08 -1988
Supreme Court of Minnesota
Filed: June 24, 2010
Paul W. Chamberlain, Ryan R. Kuhlmann,
Chamberlain Law Firm, Wayzata, Minnesota,
for appellant.
George C. Hoff, Shelley M. Ryan, Hoff,
Barry & Kozar, P.A., Eden Prairie, Minnesota,
for respondent City of Minnetonka.
"the property in question cannot be put to a
reasonable use" without the variance.
3. Because the municipality applied the
wrong standard, a remand for reconsideration of
respondent's variance application under the
correct standard is appropriate.
James M. Susag, Larkin, Hoffman, Daly &
Lindgren Ltd., Bloomington, Minnesota, for
respondent JoAnne Liebeler.
Susan L. Naughton, St. Paul, Minnesota,
for amicus curiae League of Minnesota Cities.
STATE OF MINNESOTA IN SUPREME
COURT
Court of Appeals Gildea, J. Took no part,
Dietzen, J.
Office of Appellate Courts
Page 2
1. Although Minn. Stat. § 462.357, subd.
le(a) (2008), restricts the ability of property
owners to expand their nonconforming uses,
subdivision le(b) authorizes a municipality to
allow an expansion pursuant to ordinance.
Because the legislature gave the municipality
discretion to authorize the expansion of a
nonconforming use, the decision to allow
respondent to seek a variance under the
ordinance to expand a nonconformity was
consistent with Minn. Stat. § 462.357, subd. le.
2. Under Minn. Stat. § 462.357, subd. 6, to
establish the "undue hardship" required for a
variance, a variance applicant must establish that
Reversed and remanded.
GILDEA, Justice.
This case involves the decision of
respondent City of Minnetonka to grant a
variance to respondent JoAnne Liebeler so that
she could expand her nonconforming garage.
Appellant Beat Krummenacher is Liebeler's
neighbor and he challenges the City's decision.
The district court upheld the City's variance, and
the court of appeals affirmed. See
Krummenacher v. City of Minnetonka, 768
N.W.2d 377, 384 (Minn. App. 2009). Because
we conclude that the City applied the wrong
standard to Liebeler's
Page 3
variance request, we reverse and remand to the
City for reconsideration under the correct
standard.
Liebeler owns property located in
Minnetonka. Krummenacher is Liebeler's
neighbor to the west. Liebeler's property consists
of a 2.4 -acre lot, which contains a 2, 975- square-
foot home and an attached two -car garage. The
property also contains a detached flat - roofed
garage that a previous owner constructed
sometime in the 1940s. The City has an
ordinance requiring that the detached garage be
last Case
Krummenawher', /. City Of Minnetonka (Blinn_ 2011 )
set back a minimum of 50 feet from the
property's boundary line. Minnetonka City Code
§ 300.10. Liebeler's garage was constructed
before this ordinance went into effect, and it
does not satisfy the setback requirement.
Specifically, the garage is nonconforming
because it is set back only 17 feet from the front
yard lot line. Because the garage was
constructed before the ordinance became
effective, however, the garage is a permissible
nonconformity.
On March 31, 2008, Liebeler applied for a
variance to expand the detached garage by
adding a pitched roof and a second -story room
above the garage that could be used as a yoga
studio and craft room. Liebeler's proposal was to
renovate the garage itself, both to fix its leakage
problems and improve its appearance, and also
to expand the garage by adding a living space
above it. Because adding a second story to the
garage would result in a vertical expansion of a
nonconforming structure, Liebeler was required,
under the Minnetonka City Code, to apply for a
variance from the City.' -See Minnetonka City
Page 4
Code § 300.29.3(g). Liebeler's proposed
addition would not alter the footprint of the
garage and would comply with the City zoning
requirements for a detached garage with respect
to maximum height and size.
The City's Planning Commission held a
public hearing on May 15, 2008, to consider
Liebeler's request. Both Liebeler and
Krummenacher had an opportunity to present
their arguments at that hearing. Liebeler
explained that she believed that the flat roof was
causing leakage problems and that the structure
itself needed to be updated. Krummenacher
objected to Liebeler's proposed project,
explaining that the added height of the garage
would obstruct his view to the east.
The Planning Commission approved
Liebeler's request for the variance. The Planning
Commission based its decision on the following
findings: (1) 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 "; (2) the
preexisting nonconforming setback was a
"unique circumstance "; (3) Liebeler's proposal
would comply with the "intent of the ordinance"
because it satisfied the "zoning ordinance
requirements for a detached garage for
maximum height and size" and did not alter the
footprint of the garage; and (4) the proposal
would not alter the "neighborhood character"
because it would "visually enhance the exterior
of the garage" and because there was
Page 5
another detached garage on a nearby property
that was also set back only 17 feet from the road.
Krummenacher appealed the Planning
Commission's decision to the Minnetonka City
Council. The City Council held a public hearing
on the variance request on June 30, 2008, at
which both sides presented their arguments.
After an examination of the record, the City
Council upheld the Planning Commission's
decision and findings. The City Council found
that Liebeler's "proposal is reasonable and
would meet the required standards for a
variance." The council listed four requirements
and found that the variance satisfied those
requirements as follows:
(1) Undue Hardship: there is an undue
hardship due to the topography of the site, width
of the lot, location of the driveway and existing
vegetation.
(2) Unique Circumstance: The existing,
non - conforming setback is a circumstance that is
not common to every similarly zoned property.
(3) Intent of the Ordinance: The
improvements would not increase the footprint
of the garage, and would comply with the zoning
ordinance requirements for a detached garage
for maximum height and size.
(4) Neighborhood Character: The garage
improvements would not alter the character of
the neighborhood. The improvements would
Kit rnr t ache `.'. City Of Wif ,tor � (Mi r., 2! 1i))
visually enhance the exterior of the garage.
There is also a detached garage on the property
to the east that is set back 17 feet from [the
street].
Krummenacher then brought suit in district
court challenging, among other things, the City's
finding of undue hardship. Krummenacher
served discovery requests asking for additional
documents from the City, but the City objected
to providing more than the City's record on the
grounds that the case was properly subject to
record review. The court declined to order the
City to produce the additional documents, and
affirmed the
Page 6
structure. Section 462.357, subdivision le,
provides in relevant part:
(a) 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,
Page 7
replacement, restoration,
maintenance, or improvement,
but not including expansion....
City's decision to grant the variance to
Liebeler, concluding that the City's decision was
not "arbitrary and capricious."
Krummenacher appealed to the court of
appeals. On appeal, he raised three issues. First,
he argued that Minn. Stat. § 462.357, subd. le(a)
(2008), prohibits the City from granting a
variance to allow the expansion of a
nonconforming use. Krummenacher, 768
N.W.2d at 380 -81. Second, he argued that the
City's approval of the variance request was
"arbitrary and capricious" because Liebeler had
failed to meet the "undue hardship" standard of
Minn. Stat. § 462.357, subd. 6. See
Krummenacher, 768 N.W.2d at 382 -84. Last, he
argued that the district court erred in refusing to
compel additional discovery by the City. See id.
at 384. The court of appeals affirmed the district
court's decision in all respects.
We granted Krummenacher's petition for
review. On appeal to our court, Krummenacher
advances the same three arguments he made to
the court of appeals.?
R
We turn first to Krummenacher's argument
that Minn. Stat. § 462.357, subd. le, prohibits a
municipality from granting a variance that
allows for the expansion of a nonconforming
(b) A municipality may, by
ordinance, permit an expansion
or impose upon nonconformities
reasonable regulations to
prevent and abate nuisances and
to protect the public health,
welfare, or safety.
(Emphasis added.) 3 Krummenacher argues
that because the plain language of paragraph (a)
of subdivision le prohibits the expansion of any
nonconformity, the City's decision allowing
Liebeler to expand her nonconforming garage
must be reversed. The City argues that
subdivision le(a) restricts the ability of property
owners to expand nonconforming uses, but that
under subdivision le(b), a municipality is
permitted to allow an expansion pursuant to
ordinance.
The construction of a statute is a question
of law that we review de novo. Clark v.
Lindquist, 683 N.W.2d 784, 785 (Minn. 2004).
To interpret a statute, we first assess
Page 8
"whether the statute's language, on its face,
is clear or ambiguous." Am. Family Ins. Group
v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000).
If the law is "clear and free from all ambiguity,"
the plain meaning controls and is not
lastc EE, :r
Krumr-, c< et V. City C' Mirrr (Mum- 2U Gj
"disregarded under the pretext of pursuing the
spirit." Minn. Stat. § 645.16 (2008); Phelps v.
Commonwealth Land Title Ins. Co., 537 N.W.2d
271, 274 (Minn. 1995) ( "Where the intention of
the legislature is clearly manifested by plain
unambiguous language... no construction is
necessary or permitted. "). The legislature has
also stated that it intends the entire statute to be
effective. Minn. Stat. § 645.16 ( "Every law shall
be construed, if possible, to give effect to all its
provisions. ").
This case is about a structure that does not
conform with local land use restrictions. We
have recognized that a local zoning ordinance
"may constitutionally prohibit the creation of
uses which are nonconforming." County of
Freeborn v. Claussen, 295 Minn. 96, 99, 203
N.W.2d 323, 325 (1972). As to "existing
nonconforming uses," however, these "must
either be permitted to remain or be eliminated by
use of eminent domain." Id. But a local
government "is not required" to permit the
expansion of such nonconformities. Id.
Subdivision le is consistent with these
principles. We read the subdivision in its
entirety and give effect to both paragraph (a) and
paragraph (b). Minn. Stat. § 645.16;
Page 9
see also In re Kenney, 374 N.W.2d 271,
274 (Minn. 1985) ( "A statute will be construed
so as to give effect to all of its parts. "). In
paragraph (a), the legislature, with certain
exceptions not relevant here, prohibits a
municipality from ordering the removal of
nonconformities. Further, the legislature has
given property owners the right to repair or
replace a nonconformity so long as they do not
expand the nonconformity. In other words, as
long as the property owner does not expand the
nonconformity, she does not need municipal
approval to take corrective or remedial action on
the nonconformity. But under paragraph (b), if
the property owner seeks to expand the
nonconformity, the municipality may, by
ordinance, permit the expansion.
Consistent with the authority the legislature
granted to it in paragraph (b) of subdivision le,
the City has an ordinance that addresses the
expansion of nonconformities. See Minnetonka
City Code § 300.29(g)(1). This ordinance
provides that "an expansion of any non-
conforming use may not be done without first
obtaining a variance." Id. Liebeler's proposed
addition to her detached garage required a
variance because she proposed to "occup[y]
space within a non - conforming area that was
previously not occupied... vertically." Id.
Krummenacher argues that because state
law is superior to municipal law, the City cannot
grant a variance pursuant to its own ordinance if
that variance violates state law.
Page 10
See Denney v. City of Duluth, 295 Minn.
22, 26, 202 N.W.2d 892, 894 (1972) ( "It is
fundamental that a municipality's power to
regulate land use by zoning exists by virtue of
authority delegated to it by the state. "). But
Minn. Stat. § 462.357, subd. le(b), grants the
City the discretion to permit the expansion of a
nonconformity by ordinance. The City provided
a mechanism for expansion in section
300.29(g)(1), through a variance application,
and Krummenacher makes no argument that
Liebeler's request for a variance did not satisfy
that section of the City Code.
Because the legislature gave the City
discretion to authorize the expansion of
Liebeler's nonconforming garage, we hold that
the City's decision to allow Liebeler to seek a
variance under the ordinance to expand a
nonconformity was consistent with Minn. Stat. §
462.357, subd. le.
II.
We turn next to Krummenacher's argument
that the City's decision must be set aside because
it was arbitrary and capricious. Municipalities
have "broad discretionary power" in considering
whether to grant or deny a variance.
VanLandschoot v. City of Mendota Heights, 336
17
Last
_4_
'n w r,rrcher V
N.W.2d 503, 508 (Minn. 1983). We review such
decisions "to determine whether the
municipality "was within its jurisdiction, was
not mistaken as to the applicable law, and did
not act arbitrarily, oppressively, or
unreasonably, and to determine whether the
evidence could reasonably support or justify the
determination." In re Stadsvold, 754 N.W.2d
323, 332 (Minn. 2008) (internal quotation
omitted).
Page 11
A.
Krummenacher argues that the City's
decision was arbitrary and capricious because
the City did not apply the proper standard to
determine whether Liebeler demonstrated
"undue hardship" as defined in Minn. Stat. §
462.357, subd. 6. This provision allows a city to
grant a variance "from the literal provisions of
the ordinance in instances where their strict
enforcement would cause undue hardship
because of circumstances unique to the
individual property under consideration." Minn.
Stat. § 462.357, subd. 6.
Minnesota Statutes § 462.357, subd. 6,
provides a definition of "undue hardship," and
that definition requires that three factors be met.
Specifically, the statute defines "undue
hardship" as meaning, the property in question
cannot be put to 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. Id.
To receive a variance, the applicant must show
that he or she meets all of the three statutory
requirements of the "undue hardship" test. Id. In
addition to satisfying the "undue hardship"
requirement, the statute allows municipalities to
grant variances only
Page 12
"when it is demonstrated that such actions
will be in keeping with the spirit and intent of
Of Minnefonl a ("Aron... 201
the ordinance." Id. Krummenacher argues that
Liebeler's application does not meet any of the
requirements for "undue hardship."
The first factor a variance applicant must
establish to satisfy the statute's definition of
"undue hardship" is that "the property in
question cannot be put to reasonable use if used
under conditions allowed by the official
controls." Minn. Stat. § 462.357, subd. 6; see
also Minnetonka City Code § 300.07.1(a).
Krummenacher argues 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 reasonable use
without it. According to Krummenacher,
Liebeler had a reasonable use for her garage
without the addition of a yoga studio and craft
room its current use as a storage space for
vehicles. Krummenacher argues therefore that
the City did not have the statutory authority to
grant the variance.
The court of appeals rejected this argument,
relying on its decision in Rowell v. Board of
Adjustment of Moorhead, 446 N.W.2d 917
(Minn. App. 1989), rev. denied (Minn. Dec. 15,
1989). The court in that case interpreted the
"undue hardship" section of Minn. Stat. §
462.357, subd. 6, as requiring a variance
applicant to show that the "property owner
would like to use the property in a reasonable
manner that is prohibited by the ordinance." Id.
at 922.
The City urges that we should embrace the
interpretation of "undue hardship" from Rowell,
and it appears from the record that the Rowell
"reasonable manner" standard is the standard the
City used in evaluating Liebeler's request for a
variance. The City
Page 13
determined that the expansion of the garage was
a reasonable use of the property and that the
request met the other requirements of the statute.
Specifically, as reflected in the City Council
Resolution, the City found that "the proposal is
reasonable" and with respect to "undue
h'r ar `.'. City Of i ini,(,.tenr ( "t`sir .. 20'U)
)
hardship," that "[t]here is an undue hardship due
to the topography of the site, width of the lot,
location of the driveway and existing
vegetation."
The plain language of the statute and our
precedent compel us to reject the City's
invitation to adopt Rowel Vs interpretation of
"undue hardship." The statute provides that to
prove "undue hardship," the variance applicant
must show that "the property in question cannot
be put to a reasonable use" without the variance.
Minn. Stat. § 462.357, subd. 6. Notwithstanding
this language, the court of appeals concluded
that "[t]his provision does not mean that a
property owner must show the land cannot be
put to any reasonable use without the variance."
Rowell, 446 N.W.2d at 922. The court of appeals
essentially rewrote the statute to mean that a
municipality may grant a variance when the
"property owner would like to use the property
in a reasonable manner that is prohibited by the
ordinance." Id. at 922. Although the Rowell
"reasonable manner" standard has been used for
over 20 years, we simply cannot reconcile that
standard with the plain language of the statute.
hardship," and we concluded that the standard
was met because the "plaintiffs' lot, in the
absence of a variance, would be unusable for
any purpose." Curry, 285 Minn. at 388 -89, 396,
173 N.W.2d at 411, 415. The standard we
applied in Curry is more rigorous than the
"reasonable manner" standard adopted in
Rowell, and appears consistent with the plain
language of the first part of the "undue hardship"
definition that is in the current statute. See Minn.
Stat. § 462.357, subd. 6.
In addition, in formulating the "reasonable
manner" standard, the court in Rowell appears to
have relied on the "practical difficulties"
standard. See Rowell, 446 N.W.2d at 922. But
we have made a clear distinction between the
"practical difficulties" standard and the "undue
hardship" standard. See Stadsvold, 754 N.W.2d
at 328 -31. As we explained in Stadsvold, the
"practical difficulties" standard '- applies to
review of county decisions to grant area
variances, while the "undue hardship" standard
applies to all
Page 15
The Rowell standard is also inconsistent
with our precedent. In support of the application
of a "reasonable manner" standard for
determining "undue hardship," Rowell cites
Curry v. Young, 285 Minn. 387, 173 N.W.2d
410 (1969), for the proposition that a variance is
"required where a setback requirement would
force a property owner to build a much smaller
structure." Id. at 922. The version of Minn. Stat.
§ 462.357 in effect
Page 14
when Curry was decided did not contain the
definition of "undue hardship" that is in the
current version of the statute. See Minn. Stat. §
462.357 (1969). Moreover, while we discussed
in Curry the dimensions of a structure that could
theoretically be built to comply with the
statutory requirements, we based our
determination that the variance was properly
granted on the municipality's ordinance. That
ordinance required a showing of "particular
ra.St cJ
municipal decisions to grant variances. Id. at
327 -28 & n.2. Compare Minn. Stat. § 462357,
subd. 6, with Minn. Stat. § 394.27, subd. 7
(2008).
In Stadsvold, we interpreted Minn. Stat. §
394.27, subd. 7, which sets forth the statutory
standard for county variances. This statute
contains both the "practical difficulties" standard
and a "particular hardship" standard.
Specifically, section 394.27 authorizes a county
to grant variances from "the terms of any official
control" but only when the property owner
would face "practical difficulties or particular
hardship" in meeting "the strict letter of any
official control." Minn. Stat. § 394.27, subd. 7.
We distinguished the "less rigorous 'practical
difficulties' " standard that applies to area
variance applications from the more rigorous
"particular hardship" standard that applies to use
variance applications. Stadsvold, 754 N.W.2d at
330 - 31.
6 _
f''urr'tn :�aoher V, City Of Minnetcinka (I'Ann., 2010)
Page 16
Adopting the Rowell "reasonable manner"
standard would be inconsistent with the
distinction we made in Stadsvold between the
"practical difficulties" and "hardship" standards.
The legislature defined the "hardship" standard
in the county statute the same way it defined the
"undue hardship" standard in the municipal
statute. ' —` Because the legislature used the same
language in both the county and city variance
statutes when defining "hardship," our analysis
in Stadsvold requires us to conclude that the
"undue hardship" standard in Minn. Stat. §
462.537, subd. 6, is more demanding than the
"practical difficulties" standard the court of
appeals appears to have relied on in Ro>-dell, 446
N.W.2d at 922.
Moreover, with respect to the "practical
difficulties" standard, we identified in Stadsvold
several factors the county should consider in
assessing whether that standard was met:
(1) how substantial the variation is in
relation to the requirement; (2) the effect the
variance would have on government services;
(3) whether the variance will effect a substantial
change in the character of the neighborhood or
will be a substantial detriment to neighboring
properties; (4) whether the practical difficulty
can be alleviated by a feasible method other than
a variance; (5) how the practical difficulty
occurred, including
Page 17
whether the landowner created the need for the
variance; and (6) whether, in light of all of the
above factors, allowing the variance will serve
the interests of justice.
754 N.W.2d at 331 (footnote omitted).
Rowel Vs interpretation of the "undue hardship"
standard, requiring only that the proposed use be
"reasonable," would render the "undue hardship"
standard in section 462.357 less stringent than
the "practical difficulties" standard and much
less stringent than the "particular hardship"
standard in the county variance statute, which
last .,- `4 .
the "undue hardship" standard appears to
parallel. See Stadsvold, 754 N.W.2d at 331. In
short, our analysis in Stadsvold simply does not
leave room for
the Rowell "reasonable manner" standard.''
Page 18
We recognize that the standard we apply
today, while followed elsewhere, is not the
universal rule.-L For example, in Simplex
Technologies, Inc. v. Town of Newington, 766
A.2d 713 (N.H. 2001), the New Hampshire
Supreme Court provided a thorough and
insightful review of the development of land use
variance law, and its practical construction in
modern times. The New Hampshire statute did
not contain a specific definition of "unnecessary
hardship," like our statute does, and the court
concluded that its prior definition of the
statutory term "unnecessary hardship" "ha[d]
become too restrictive in light of the
constitutional protections by which it must be
tempered." Id. at 717. The New Hampshire
Supreme Court framed the issue in the following
terms: Inevitably and necessarily there is a
tension between zoning ordinances and property
rights, as courts balance the right of citizens to
the enjoyment of
Page 19
private property with the right of municipalities
to restrict property use. In this balancing
process, constitutional property rights must be
respected and protected from unreasonable
zoning restrictions.
Id, at 716 -17. In light of these
considerations, the New Hampshire Supreme
Court said that "unnecessary hardship" would, in
the future, be established when a landowner
showed that (1) a zoning restriction as applied
interferes with a reasonable use of the property,
considering the unique setting of the property in
its environment; (2) no fair and substantial
relationship exists between the general purposes
of the zoning ordinance and the specific
restriction on the property; and (3) the variance
- 7-
\'. City Of M- inn,.tonk,. (Mier .
would not injure the public or private rights of
others. Id. at 717.'
Had the Minnesota Legislature not defined
"undue hardship" in Minn. Stat. § 462.357, subd.
6, we might consider the approach articulated in
Simplex.l' A flexible variance standard allows
municipalities to make modest adjustments to
the detailed application of a regulatory scheme
when a zoning ordinance imposes significant
burdens on an individual, and relief can be
fashioned without harm to the neighbors, the
community, or the overall purposes of the
ordinance. See David W. Owens, The Zoning
Variance: Reappraisal and Recommendations
for Reform of a Much - Maligned Tool, 29
Colum. J. Envtl. L. 279, 317 (2004) ( "If the
variance power is to be used both as a
Page 20
constitutional safeguard and as a tool for
flexibility, zoning enabling acts and local
ordinances should be amended to delineate these
two purposes and set different standards for
each. The failure to make such a distinction
underlies much of the past controversy regarding
variances. Courts and commentators have
traditionally viewed the variances as the former
a very limited tool for avoidance of
constitutional infirmity in extraordinary cases.
Most variance petitions, and consequently most
board of adjustment decisionmaking, have
viewed the variances as the latter a tool to
provide flexible implementation rather than
constitutional infirmity. ").
language of the statute. See State v. Peck, 773
N.W.2d 768, 773 (Minn. 2009) ( "We have no
opportunity to ignore part of the legislature's
definition. "). 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. § 462.357,
subd. 6. Therefore, unless and until the
legislature takes action to provide a more
flexible variance standard for municipalities, we
are constrained by the
Page 21
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.
Based on the plain language of the statute,
and our precedent interpreting language similar
to "undue hardship" in the context of a local
government's authority to grant variances, we
reject the "reasonable manner" standard from
Rowell. We hold that the City inaccurately
applied the first factor in the "undue hardship"
definition of Minn. Stat. § 462.357, subd. 6. Our
resolution of this issue makes it unnecessary for
us to resolve the other issues Krummenacher
raises on appeal.
11
We recognize that the Rowell "reasonable
manner" standard represents a longstanding
interpretation of the undue hardship standard in
Minn. Stat. § 462.357, subd. 6, and that
Minnesota municipalities have been granting
variances under the "reasonable manner"
standard for many years. We also recognize that
our decision will result in a restriction on a
municipality's authority to grant variances as
compared with the "reasonable manner"
standard. But whatever value we may find in a
more flexible standard, particularly with regard
to area variances, we cannot ignore the plain
Having concluded that the City applied the
law incorrectly, we must address the remedy. In
cases where a variance has been denied, the
general rule is that "[i]f the zoning authority's
decision is arbitrary and capricious, the standard
remedy is that the court orders the permit to be
issued." Stadsvold, 754 N.W.2d at 332; see also
In re Livingood, 594 N.W.2d 889, 895 (Minn.
1999). But there is an exception to this general
rule "when the zoning authority's decision is
premature and not necessarily arbitrary."
Stadsvold, 752 N.W.2d at 333 (internal
quotation omitted). For example, in
r
l astc a s e
h ;; n tit
Earthburners, Inc. v. County of Carlton, where
it was unclear whether the zoning authority had
applied the relevant statutory provisions, we
remanded to the zoning authority for "renewed
consideration" under the appropriate standard.
513 N.W.2d 460, 463 (Minn. 1994).
Page 22
Similarly, in Stadsvold, we remanded a
variance application to the county board because
the board applied the wrong standard:
The Board, using an "adequate
hardship" standard, did not
consider practical difficulties.
The Stadsvolds argue the
BoardVs decision was therefore
arbitrary and capricious. The
Board did not have the benefit
of our holding in this case
regarding "practical
difficulties." We cannot tell
whether the Board\'s decision
was arbitrary and capricious.
Therefore, remand is required to
allow the Board to consider the
Stadsvolds \' variance
application in light of our
holding that applications for
area variances are to be
considered using the "practical
difficulties" standard in Minn.
Stat.
§ 394.27, subd. 7.
Stadsvold, 754 N.W.2d at 332. Our
precedent therefore supports the conclusion that
a property owner is entitled to have his or her
variance application heard under the correct
legal standard, which supports a remand in this
case. A remand is particularly appropriate in this
case because a property owner seeking to utilize
her property should not be penalized due to the
City's application of the wrong legal standard.
We reverse and remand the matter to the City for
renewed consideration of Liebeler's variance
request in light of our rejection of the
east ass
Of MinnAor �a (Wnn..20901
"reasonable manner" standard from Rowell.
Reversed and remanded.
DIETZEN, J., took no part in the
consideration or decision of this case.
Notes:
I It appears that Liebeler did not attempt to
move the garage to a conforming location because
the unusual characteristics of the lot made relocation
impracticable. Liebeler's lot is L- shaped with only
45 -feet of frontage on the road. Moreover, there is a
significant slope immediately behind the garage,
making it difficult to move the garage back.
On January 26, 2010, Liebeler filed a motion
to dismiss, arguing that we should dismiss the case
on the grounds that construction of the expanded
garage has been completed, rendering
Krummenacher's claims moot. The motion to dismiss
is denied.
,. In its brief, the City cites the 2009 version of
section 462. 357, subdivision Ie(a) which reads:
Except as otherwise provided by
law, 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....
Minn. Stat. § 462.357 (Supp. 2009) (new
language in italics). The "except as otherwise
provided" language in this version of subdivision
le(a), however, did not become effective until May
22, 2009, which was after the City granted the
variance. See Act of May 21, 2009, ch. 149, § 4, 2009
Minn. Laws 2025, 2028. We therefore do not rely on
this version of the statute. We apply the 2008 version
of subdivision le, the version of the statute in effect
when the variance was granted.
' Liebeler did not propose to expand the
footprint of her garage, and it is undisputed that even
as remodeled the garage would still be 17 feet from
the yard line. In other words, the scope of the
c
r)�ch er V, City Of Min )etonka (tAinn, 20-1C}
nonconformity would not be expanded if Liebeler's
request were granted. The City nevertheless concedes
that the variance sought an "expansion" for purposes
of Minn. Stat. § 462.357, subd. le, and we treat it as
such for purposes of this opinion.
The statute allows the municipality to require a
nonconformity to be discontinued when it "is
discontinued for a period of more than one year," or
"is destroyed by fire or other peril to the extent of
greater than 50 percent of its market value, and no
building permit has been applied for within 180 days
of when the property is damaged." Minn, Stat. §
462,357, subd. le(a)(1) and (2).
The Minnetonka City Code has almost
identical provisions. Minnetonka City Code §
300,07.1(a) ( "A variance may be granted from the
literal provisions of this ordinance in instances where
strict enforcement would cause undue hardship
because of circumstances unique to the individual
property under consideration and when it is
demonstrated that such actions would be consistent
with the spirit and intent of this ordinance. Undue
hardship means the property in question cannot be
put to a reasonable use if used under conditions
allowed by this ordinance, the plight of the
landowner is due to circumstances unique to the
property not created by the landowner, and the
variance, if granted, would not alter the essential
character of the neighborhood. ").
-In support of the application of this standard,
the court of appeals cited Merriam Park Community
Council, Inc. v. McDonough, 297 Minn. 285, 289 -90,
210 N.W.2d 416, 419 (1973), overruled on other
grounds by Northwestern College v. City of Arden
Hills, 281 N.W.2d 865, 868 n.4 (Minn. 1979). As in
Curry, the version of Minn. Stat. § 462.357 in effect
when Merriam Park was decided did not contain the
definition of "undue hardship" that is in the current
version of the statute. See 297 Minn. at 289 -90, 210
N.W.2d at 418 -19 (quoting statute).
1 While Minn. Stat. § 462.357, subd. 6, and
Minn. Stat. § 394,27, subd. 7, both set forth standards
for granting variances, section 462.357, subdivision
6, applies to municipalities and section 394.27,
subdivision 7, applies to counties.
`' The same dichotomy of language at issue in
Stadsvold existed in the predecessor to the municipal
zoning statute, section 462.357. Until 1965, section
462.22 (enacted in 1929, repealed in 1965) granted
municipalities the power to vary or modify the
application of a zoning regulation where there were
"practical difficulties or unnecessary hardship" in
complying with the strict letter of the regulation.
Minn. Stat. § 462.22 (1961). In 1965, the legislature
replaced Minn. Stat. § 462.22 with Minn. Stat. §
462,357, Act of May 22, 1965, c. 670, § 7, 1965
Minn. Laws 995, 1000 -03. The new statute replaced
the "practical difficulties or unnecessary hardship"
standard with the current single "undue hardship"
standard. Id. "Undue hardship" was undefined in the
statute until 1982, when the legislature, borrowing
the definition of "hardship" from the county variance
statute, Minn. Stat. § 394.27, added the current
definition of "undue hardship" to the statute. Act of
Mar. 22, 1982, ch. 507, § 22, 1982 Minn, Laws 592,
593.
10 As we discussed in Stadsvold, "[t]here are two
types of variances: use variances and area variances.
'A use variance permits a use or development of land
other than that prescribed by zoning regulations.'...
An area variance controls 'lot restrictions such as
area, height, setback, density and parking
requirements.' " 754 N.W.2d at 329 (quoting In re
Appeal of Kenney, 374 N.W.2d 271, 274 (Minn,
1985)).
11 " '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 the
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." Minn, Stat. § 394.27, subd.
7.
'? The City argues that, even if Rowell was based
on an erroneous reading of the text of section
462.357, subdivision 6, the standard in Rowell has
been used by municipalities for many years in
determining whether to grant a variance. See, e.g.,
Mohler v. City of St. Louis Park, 643 N.W.2d 623,
631 (Minn. App. 2002); Nolan v. City of Eden
Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000);
Sagstetter v. City of St. Paul, 529 N.W.2d 488, 492
(Minn. App. 1995). The City suggests that, because
the legislature has amended section 462.357 many
times since Rowell and has not disturbed the court of
appeals' interpretation of the "undue hardship"
standard, we should treat the legislature as having
ratified the Rowell standard. But the legislature has
provided that "[w]hen a court of last resort has
construed the language of a law, the legislature in
1 f) _.
V. City Of ( €:fir i- 1 2 01u)
subsequent laws on the same subject matter intends
the same construction to be placed upon such
language." Minn. Stat. § 645.17(4) (2008). The court
of appeals is not "a court of last resort." See
Anderson- .Iohanningmeier V. Mid - Minnesota
Women's Ctr., Inc., 673 N.W.2d 270, 276 (Minn.
2002) (stating that the court of appeals is not the
court of last resort with respect to statutory
construction). Nor does the denial of a petition for
review give a court of appeals decision more
precedential value than a court of appeals decision
from which no review was sought. Murphy v.
Milbank Mut. Ins. Co., 388 N.W.2d 732, 739 (Minn.
1986). We therefore reject the City's argument that
the legislature has ratified the Rowell standard.
While most jurisdictions use the phrase
"unnecessary hardship" rather than "undue hardship"
as the applicable standard, many jurisdictions appear
to require that the variance applicant establish real
hardship if the variance is denied rather than simply
requiring that the applicant show the reasonableness
of the proposed use. See, e.g., Larsen v. Zoning Bd. of
Adjustment of Pittsburgh, 672 A.2d 286, 290 -92 (Pa.
1996) (holding that the "mere desire to provide more
room for a family member's enjoyment" is
insufficient to constitute "unnecessary hardship"
under the statute and requiring applicants to show
that, if the variance request is denied, the property
will be "practically useless "); OK Properties v.
Zoning Bd. of Review of Warwick, 601 A.2d 953, 955
astc S ..
(R.I. 1992) ( "The court has determined that
unnecessary hardship exists when restricting the
property to the permitted uses within the zoning
ordinance will deprive the property owner of all
beneficial use of the property and that granting a
variance becomes necessary to avoid an indirect
confiscation of the property."); Cochran v. Fairfax
County Board of Zoning Appeals, 594 S.E.2d 571,
577 (Va. 2004) ( "[T]he [Board of Zoning Appeals]
has no authority to grant a variance unless the effect
of the zoning ordinance, as applied to the piece of
property under consideration, would, in the absence
of a variance, interfere with all reasonable beneficial
uses of the property, taken as a whole. ") (internal
quotation marks omitted); 3 Anderson's Law of
Zoning § 20.16 (Kenneth H. Young ed., 4th ed.,
1996) (describing different states' approaches to the
"unnecessary hardship" standard and suggesting that
most states give the term a fairly restrictive
construction).
These standards were subsequently codified.
See N.H. Rev. Stat, Ann. § 674:33 (Supp. 2009).
'S The factors set forth in Simplex are not
dissimilar to the factors we embraced in Stadsvold in
construing "practical difficulties." See 754 N.W.2d at
331 (discussing factors for consideration under the
"practical difficulties" standard).
- 11 -
State Supreme Court Narrowly Interprets Variance Authority
The court ruling holds cities to a much stricter standard, which considerably limits
variance opportunities.
(Published Jul 21, 2010)
The Minnesota Supreme Court recently issued a decision that changed the longstanding
interpretation of the statutory standard for granting zoning variances.
In the case of Krummenacher v. City of Minnetonka, the Supreme Court narrowly
interpreted the definition of "undue hardship" and held that the "reasonable use"
prong of the "undue hardship" test is not whether the proposed use is reasonable, but
rather whether there is reasonable use in the absence of the variance. This is a much
stricter standard, which considerably limits variance opportunities.
The decision
The City of Minnetonka issued a variance to a residential property owner permitting
the expansion of a legal, non - conforming garage. The city, relying on a 1989 Court of
Appeals decision, concluded that the grant of the variance was reasonable. The city's
decision was challenged by an adjacent property owner. Both the District Court and the
Minnesota Court of Appeals agreed that the city's decision was appropriate. On June 24
the Minnesota Supreme Court reversed the Court of Appeals and found the city's
decision impermissible.
The Supreme Court examined the statutory definition of "undue hardship" in
Minnesota Statutes, section 462.357, and concluded that city authority to issue a
variance is limited to those very rare cases where the property cannot be put to "a
reasonable use" without the variance. This establishes a high threshold for both the city
and the property owner when considering variance requests.
The Supreme Court reviewed the parallel county authority that allows for a variance in
situations of "practical difficulties" or "hardship." The Supreme Court found that the
city authority was more limited because it did not contain the "practical difficulties"
provision. The court explicitly recognized that it was changing a longstanding standard
that cities have relied on in considering variance requests. In particular, the court
specifically rejected a 1989 Court of Appeals interpretation of the phrase "undue
hardship," which allowed for the grant of a variance in circumstances where the
"property owner would like to use the property in a reasonable manner that is
prohibited by the ordinance."
Page I 1
The Supreme Court stated that "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."
Impact of the decision
Because of the far - reaching nature of the decision, there are probably at least four
responses that cities should think about —at least until a legislative correction can be
achieved:
The city should re- evaluate the criteria that it has historically used in deciding
whether or not to grant a variance. The Supreme Court's decision limits a city's
discretion. The ruling limits the authority to circumstances where the property
owner can demonstrate that there is not a reasonable use of the property absent the
variance grant.
In circumstances where the city council believes the grant of a variance is
appropriate, the city should take great care to make detailed finding describing why
the grant of the variance is necessary to provide the property owner with a
reasonable use of his or her property. What constitutes a reasonable use of property
is not defined and may differ depending on the unique circumstances of the property
and attributes of various communities.
If a city routinely grants variances, this may be an indicator that it may want to re-
examine its zoning code to ensure that standards, setbacks, uses, and other
requirements are consistent with the city council's current vision for the community.
In short, the court's decision should act as an encouragement to cities to review their
land use practices.
Cities may want to build greater flexibility into their existing conditional use permit,
planned unit development, and setback regulations to explicitly afford greater
latitude to allow "variance- like" approvals under the zoning code. For instance, a
city might establish alternative setback requirements to allow for construction that is
consistent with neighborhood attributes.
Legislative action
Page 1 2
The restrictive court decision has caused a number of League members to call for a
legislative response. The decision, its impact, and a possible legislative response will be
discussed in the League's Improving Service Delivery Policy Committee this summer. It
is anticipated that the League will support a legislative change to provide cities with
greater flexibility— perhaps something similar to the county authority.
Page 1 3
F A i
City of New Hope
Meeting Date:
Report Date:
Planning Case: 10 -03
Petitioner: Jon Hansen
Address: 3812 Boone Avenue North
August 4, 2010
July 29, 2010
Project Description: Petitioner wishes to add seven foot extensions to both sides of his driveway at the
curb, this will make his driveway 32 feet wide from the garage to the road.
Planning Request: Variance
1. Type of Planning Request
The applicant is requesting a variance to allow two seven foot extensions to the width of his driveway
at the curb line. This request if granted will allow the petitioner to keep a seven foot extension that he
has already added on the west side of the driveway, without obtaining a permit and to add a seven foot
extension to his driveway on the east side of the driveway.
A variance is a way that a city may allow an exception to part of a zoning ordinance. It is a permitted
departure from strict enforcement of the ordinance as applied to a particular piece of property. A
variance is generally for a dimensional standard (such as setbacks or height limits). A variance allows
the landowner to break a dimensional zoning rule that would otherwise apply.
A city exercises so- called "quasi- judicial" authority when considering a variance application. This
means that the city's role is limited to applying the legal standard of undue hardship to the facts
presented by the application. The city acts like a judge in evaluating the facts against the legal standard.
If the applicant meets the standard, then the variance should be granted.
11. Zoning Code References
Section(s) 4 -3 (e)(6) Curb cut maximum. No curb cut access shall exceed the following width
dimensions measured at a point set back 20 feet from the property line: Residential
single- family with a three car garage - 28 feet
4 -36 Administration - Variances
111. Property Specifications
Zoning:
Location:
Adjacent Land Uses:
R -1, Single Family
3812 Boone Avenue North, the northwest quadrant of Boone Avenue and
Boone Circle.
R -1, single family to both the north and east of the property and Northwood
Park to both the west and south.
Planning Case Report 10 -03 Page 1 8/4/2010
Site Area: 100 X 125, 12,500 square feet
Building Area: 2,375 square feet
Lot Area Ratios: Building area: 20.19%
Paved area: 6.08%
Green area: 73.73%
Planning District: District 12, is predominantly residential with a goal of retaining the good
quality of the housing stock in the district.
1V. Background
The property owner has lived at the site for many years. Previously, in 2001, the property owner made
major modifications to the property by changing the driveway access from off of Boone Avenue on the
west to off of Boone Circle on the south, at which time the garage was expanded to three and a half cars
in width. The applicant at that time sought and received permission to install a 26 foot driveway but
only installed a 24 foot wide driveway. A few years ago the applicant installed an additional seven feet
of concrete driveway on the west side of his driveway without a permit. The applicant is now
requesting to add an additional seven feet of concrete driveway on the east side of the driveway and to
keep the western addition as well. With both additions to the driveway, it will be 38 feet wide at the
street.
V. Petitioner's Comments
"According to the city's inspections department I need to apply for a variance to expand my driveway
to the width of my garage at the curb. From what I had interpreted from the code I can only have a 28 ft
curb cut. I am not putting in a curb cut I am using the existing curb which is the drive -over type. I have
tried using grass, then rock on edge but the rock does not hold and washes into the street and the grass
died and trenches formed from going over the edge of the driveway. I do need the width because we
have a very short driveway for a 3'/2 car garage and are always driving over the sides at the bottom.
Also because the driveway is short, the pitch steep, causing us to drive in and back out at an angle or
we will scrape the bottom of our cars especially the front ends."
Planning Case Report 10 -03 Page 2 8/4/2010
VII. Zoning Analysis
A. Plan Description
1. Setbacks
All setbacks on the property for building placement are met.
Planning Case Report 10 -03 Page 3 8/4/2010
2. Circulation, Access, Traffic and Emergency Vehicle Access
The edge of the driveway was 50 feet east of the curb on Boone Avenue as the driveway was
originally built. Currently, due to the addition of seven feet to the east of the driveway, the
driveway is 43 feet from the curb on Boone Avenue.
3. Curbing, Sidewalk and Pavement
The curb at this location is the surmountable type. There is no sidewalk on Boone Circle.
The pavement is in good condition.
4. Parking
The property will accommodate three cars in the garage and up to six in the driveway
5. Grading, Drainage and Erosion Control
Drainage off of the driveway and Boone Circle is all by surface drainage along the curb line
out to Boone Avenue and then to the south.
6. Neighborhood Character
The neighborhood character is high quality single family near Northwood Park. Most all
properties in the neighborhood have two car garages with driveways of similar width.
7. Project Specific Issues
The applicant has a large family and many drivers. The driveway is steep and low profile
vehicles will drag if they enter or exit the property in a straight line. The property owner
created this situation when the property was remodeled in 2001 and the driveway was
moved from Boone Avenue to Boone Circle. The property owner had previously received
approval for a 26 foot driveway but chose instead to build a 24 foot wide driveway. Code
will allow the applicant to have up to a 28 foot wide driveway for his three car driveway.
B. Zoning Code Criteria
1. Zoning Code Request
Variance: The purpose of a variance is to permit relief from the strict application of the terms
of the zoning code to prevent undue hardships or mitigate undue noneconomic hardship in
the reasonable use of a specific parcel of property and where circumstances are unique to
the individual property under consideration, and the granting of a variance is demonstrated
to be in keeping with the spirit and intent of this Code. An application for a variance
requires a public hearing.
Hardship. An application for variance shall not be approved unless a finding is made that
failure to grant the variance will result in undue hardship on the applicant, and, as may be
applicable, the following criteria have been met:
(1) A hardship may exist by reason of a physical condition unique to the property that
results in exceptional difficulties when using the parcel or lot within the strict
application of the terms of this Code. Physical hardships may include lot shape,
narrowness, shallowness, slope, or topographic or similar conditions unique to the
parcel or lot. Undue hardship also includes inadequate access to direct sunlight for solar
Planning Case Report 10 -03 Page 4 8/4/2010
energy systems. Economic conditions alone shall not constitute an undue hardship if
reasonable use of the property exists under the terms of this Code.
Details:
a. Lot's location and configuration are both fairly standard for the city.
b. The lot is located at the intersection of one major street and a low traffic cul -de -sac and
since the earlier remodel when driveway access was moved off of Boone Avenue and
onto Boone Circle driveway access is relatively safe and easy.
c. The property slopes upwards from Boone Circle making the driveway reasonably steep
while being representative of many if not the majority of driveways in the city.
Findings: Staff does not feel there is anything in the location, configuration or physical condition of
this lot that sets it apart from other properties in the city.
2. Zoning Code Request
(2) The undue hardship is unique to the parcel or lot for which the variance is being
sought and is not generally applicable to other properties within the same zoning
district.
Findings: Staff does not feel there is anything unique to the parcel or lot for which the variance is
being sought and the majority of concerns addressed by the applicant are also applicable to numerous
properties throughout the city.
(3) The hardship or circumstances unique to the parcel or lot has not been created by the
landowner or any previous owner.
Findings: The only hardship or circumstance unique to this property or lot was created by the
property owner during the last remodeling project.
(4) Additional criteria. The application for variance shall also meet the following criteria:
a. It will not alter the essential character of the locality.
b. It will not impair an adequate supply of light and air to adjacent property, or
substantially increase the congestion of the public streets, or increase the danger of
fire, or endanger the public safety.
c. It is the minimum action required to eliminate the hardship.
d. It does not involve a use which is not allowed within the respective zoning
district.
Details:
a. The essential character of the locality will not be altered by this request.
b. This request will not impair an adequate supply of light and air or substantially
increase congestion on the public street.
c. This is the minimum action that the city can take to grant this request.
d. This use would be allowed in this zoning district.
Planning Case Report 10 -03 Page 5 8/4/2010
Finding: Staff does not feel there is anything in the additional criteria that would be an impediment to
the city approving this request.
C. Design and Review Committee
The Design and Review Committee met on July 15 to discuss this application. The committee
was not generally supportive of the request. The committee was concerned with setting a
precedent by allowing such a large driveway access in a single family residential area. The
committee and staff suggested various landscaping alternatives to accomplish the applicant's
goals.
D. Approval
1. Variance — quasi - judicial
2. Timeline
a. Date Application Deemed Complete: July 6, 2010
b. End of 60 -Day Decision Period: September 4, 2010
c. End of 120 -Day Decision Period: November 3, 2010
VI. Notification
Property owners within 350 feet were notified and notification of this hearing was published in the
city's official newspaper. Written letters of support have been received from three neighboring
property owners.
VIII. Summary
The property owner has submitted a variance application to expand the driveway to the property from
24 feet to 38 feet. New Nope City Code calls for a driveway to be no wider than 28 feet for a property
with a three car garage and 24 feet for a two car garage. The applicant has previously received
approval for a driveway width of 26 feet. The applicant feels this would make his property look better
and would also make access to the property easier.
IX. Recommendation
The Design and Review Committee and staff do not believe the applicant has met the standard for
hardship and therefore recommend the application be denied.
Attachments:
• Application
• Narrative
• Letters of support
• Public Hearing Notice
• Plans
• Location maps
• Support photos
• Application log
Planning Case Report 10 -03 Page 6 8/4/2010
APPLICATION TO PLANNING COMMISSION AND CITY COUNCIL
City of New Hope, 4401 Xylon Avenue North, New Hope, MN 55428
Case No. - W - 0 C �
Date Filed - ho oav,
Receipt No. x/6 3 2
Basic Fee Deposit
Received by 9L10-
V y
Name of Applicant: 3 0
ec- -,-, C -
PID /15 - l / V 2-/ - 7 0/0
Street Location of Property: 3(,'->12,
Legal Description of Property:
All"
OWNER OF RECORD: N ame: 4- J3
Address: -e
Home Phone: 2,i�2'- -S
2t;-Vc')Y)ftrk Phone:
Applicant's nature of Legal or Equitable Interest:
Fax:
Type of Request: (pertaining to what section of City Code)
" i j
Please outline Description of Request: (use additional pages if necessary)
7
C L-4- /' 6 Z: C-" ' s C.,;-, -e It," i id � g &76 71P m 2
Why Should Request be Granted: 7Z.-- 'S
Gam- G iv--
C c i ere-
(attach narrative to application form if necessary) C ISQ
1-09
Applicant acknowledges that before this request can be considered and /or approved, all fees, including the
basic zoning fee and any zoning deposits (as outlined in the attached application materials) must be paid to
the city and that, if additional fees are required to cover costs incurred by the city, the city manager has the
right to require additional payment.
The city hereby notifies the applicant that state law requires that the development review be completed
within 60 days from the city's acceptance of this application. If the development review cannot be
completed within 60 days, regardless of the reason, the city shall extend the review completion deadline
an additional 60 days as also permitted by state law. Development review shall be completed within 120
days unless additional review extensions are approved by the applicant in writing. The Community
Development Department will notify you of all meetings.
Signed:
Owner (prA or type name)
Applicant Other than Owner (print or type)
Evidence of Ownership Submitted:
Certified Lot Survey:
Legal Description Adequate:
Legal Ad Required:
Yes v' No Required
Yes No Required
Yes v" No Required
Yes r", No Required
Date of Design & Review Meeting: f /5��Q
Date of Planning Commission Meeting: 0
Approved: Denied:
By Planning Commission on:
Approved: Denied:
By City Council on:
Subject to the following conditions:
RECEDED JUL 212010
City of New Hope Planning Commission and Council, July 21, 2010
When I first built my addition and moved my garage access from Boone Ave to the
Boone Circle cul -de -sac I was a single parent and the only driver with a truck. I had no
problem getting in and out of the driveway with my truck. I am now remarried, have
older children (making 7 drivers with 7 cars not all live here thank goodness!) and a 6
year old. Having multiple drivers and vehicles has created issues with the layout of the
driveway.
I am asking for a variance to widen my driveway to the width of garage all the way to the
curb for several reasons which I consider a hardship on my family:
I When backing straight out, the cars and minivan scrape under the front bumper
and/or hit the blacktop in the rear end. This is evident by the gouges in the
blacktop and the cracked bumper on the minivan. We have all learned to come
into the driveway at a significant angle in order to keep this from happening.
2 When other cars are parked outside the garage, backing out at an angle can be
difficult. Our driveway is rather short and steep and there is not a lot of room to
maneuver and stay on the cement. Grass did not grow there due to being driven
over. The rocks we put in on the bottom corners of the driveway were frequently
driven on causing rocks and dirt to constantly end up in the street and into the
storm sewer. (Rock makes for a hard time shoveling snow too.)
3 The street also contributes to the problem. The street is crowned higher then a
normal street, I assume to help with drainage because we do not have a storm
sewer outlet in our circle. The height of the street crown to the pitch of the
driveway brings the nose of vehicles down at more of an angle before the wheels
hit.
I finally decided to cement the west side corner down to curb (4+ yrs ago). The added
driveway has made a tremendous difference, without it the west stall would be impossible
to maneuver in and out of with out going off driveway and making the angle needed to
avoid a scrape. I did not know I needed a permit or variance to do this. The city code
refers to curb /cut which I do not have, it did not say width of driveway at curb.
According to the city I interpreted the code wrong. I apologize for not looking into it
more before I poured cement.
We have the same issue on east side especially if another vehicle is parked on the
driveway. I would like to finish the east side with concrete same as west side.
This is why I am asking for a variance for the piece I have already put in and to be able
to finish the other side the same way. If there are back fees because my mistake on the
west piece I have no issue with paying them. I have sent some pictures to try and help
visualize the issue.
Tha*y
Jon Hansen
July 16,20 10
flm� !�
71,
To Whom it may concern
I believe that allowing the Hanson's to extend their driveway would enhance the appearance of the
landscaping and improve the value of the property and neighborhood.
I personally don't understand why the end of a driveway in New Hope can not be consistent with it's
width at the garage entrance. I think it makes the property look off balance and would love to see the
ordinance changed.
The property in question is very prominent and is seen by many who visit the park and walk or drive by.
The property is maintained immaculately and the residents are very friendly and personable to everyone
who visits.
The residents are an asset to the community and have proven how giving they are during duk duk daze
and throughout the year. Please give back to them by allowing them their little tiny slice of driveway.
Thank you for considering this,
Robin Larson, neighbor and local resident
q,;- C7 6 o) 0"7 -L �' (,!
NOTICE OF PUBLIC HEARING
VARIANCE
PLANNING CASE 10 -03
CITY OF NEW HOPE, MINNESOTA
Notice is hereby given that the New Hope Planning Commission will meet at City Hall, 4401 Xylon
Avenue North, New Hope, Minnesota on Wednesday, August 4, 2010, at 7 p.m. to hold a public hearing
on a request for a variance to allow a driveway expansion (Sections 4- 3(e)(4)h6 and 4 -33 - New Hope
Code of Ordinances) at 3812 Boone Avenue North, legally described as follows:
Lot 4, Block 5, Hipps Hopewood Hills Revised
PID 418- 118 -21 -42 -0100
Such persons as desire to be heard with reference to the proposal will be heard at this meeting. This notice
is given pursuant to the Zoning Ordinance of the city of New Hope on the petition of Jon Hansen. Exhibit
and further information can be reviewed at the Information Counter in City Hall, Monday through Friday,
8 a.m. to 4:30 p.m.
The New Hope City Council will consider the recommendation of the Planning Commission on this
proposal for the purpose of taking action at its meeting on Monday, August 23, 2010, at 7 p.m. or as soon
thereafter as may be heard in the Council Chambers, 4401 Xylon Avenue North, New Hope, Minnesota.
Accommodations such as a sign language interpreter or large printed materials are available upon request
at least five working days in advance. Please contact the city clerk to make arrangements (telephone 763-
531- 5117).
Dated: July 15, 2010
Valerie Leone
City Clerk
(Published in the New Hope- Golden Valley Sun -Post on July 22, 20 10)
Hennepin County Property Map Print
Property Type: RESIDENTIAL
Homestead: HOMESTEAD
Area (sgft): 12500
Area (acres): 0.29
A -T -B: TORRENS
Market Total: $293,000.00
Tax Total: $4,256.14
Sale Price: $120,000.00
Sale Date: 12/1994
Sale Code:
r C C7!
rage i of i
2010
http://gis.co.hen-nepin.mn.us/HCPropertyMap/Locator.aspx
6/24/2010
Hennepin County Property Map - Tax Year: 2010
The data contained on this page is derived from a compilation of records and maps and may contain discrepancies that can only be disclosed by an accurate survey performed by a licensed
land surveyor. The perimeter and area (square footage and acres) are approximates and may contain discrepancies. The information on this page should be used for reference purposes only. !,
Hennepin County does not guarantee the accuracy of material herein contained and is not responsible for any misuse or misrepresentation of this information or its derivatives.
S E PLAN DECLARATION
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CITY OF NEW HOPE
SPECIAL ZONING PROCEDURES APPLICATION LOG
A
B
C
D
E
F
G
H
I
J
Appli-
Applicant
Date
Date Applicant
Date 60-
Date 60-
Date
Deadline
Date city
Date city
cation
application
was sent
day time
day
Applicant
for city
approved or
sent response
number
Name
received
notice
limit
extension
was notified
action
denied the
to Applicant
Address
by city
that required
expires
expires
of
under
application
Phone
information
extension
extension
was missing
or waiver
10 -03
Jon Hansen
7/6/10
3812 Boone Avenue N
9/4/10
11/3/10
New Hope 55427
763 - 593 -9047
18- 118 -21-42 -0100
Boxes A -C and E -F will always be filled out. Whether the other boxes are filled out depends on the city's procedures and the date of a specific application.
A. Assign each application a number.
B. List the Applicant (name, address and phone).
C. List the date the city received the application.
D. List the date the city sent the Applicant notice that required information was missing. If the city gives such notice, it must do so within 10 business days after the
date in Box C. if the time clock is "restarted" by such a notice, assign the application a new number and record all subsequent deadlines on a new line.
E. To calculate the 60 -day limit, include all calendar days.
F. To calculate the 60 -day extension, begin counting from the day following the first 60 -day limit, include all calendar days.
G. The city will notify the Applicant by mail that a 60 -day extension period applies to the application. (The date in Box G must come before the date in Boxes E and F.)
H. List the deadline under any extension or waiver.
I. The city must act before the deadline. (The date in Box I must come before the date in Boxes E or F, or, if applicable, Box H.)
J. List the date that the city sent notice of its action to the Applicant. It is best if the city not only takes action within the time limit, but also notifies the Applicant before the
time limit expires.
0�
To:
Planning Commission
From:
Curtis Jacobsen, Director of Community Development
Date:
July 30, 2010
Subject:
Miscellaneous Issues
NOTE: The purpose of this miscellaneous issues memo is to provide commissioners with additional
detail on Council /EDA actions on Community Development related issues or other city projects.
July 26 Council meeting - The following planning /development/housing items were discussed:
• Resolution reducing the performance bond for PC08 -10 Twin City Hardware, 5650
International Parkway Approved, see attached Council request.
• PC09 -16 resolution approvi conditional use permit for cell tower at 7716 Winpark
Drive Clearwire Communications Approved as recommended by the Planning
Commission.
• Project #855 Presentation and acceptance of the feasibility report and authorizing the
preparation of plans and specifications for the proposed construction of a water quality
pond located in the area of 45th and Winnetka Avenues Approved, see attached Council
request.
• Resolution approving an agreement with Hennepin County for the Safe Route to School
improvements at Sonnesyn Elementary School in the amount of $18,000 Approved, see
attached Council request.
+ Discussion regarding the recipient of the Summer 2010 New Hope Outstanding Business
Award Selected North Central Builders, see attached Council request.
• Motion selecting the 2010 RAVE! Award recipients Selected recipients in four categories:
Gardens, Landscaping, Interior Renovation, and Exterior Renovation, see attached Council
request.
• Ordinance 2010 -09, an ordinance amending Chapter 8 of the New Hope City Code by
establishing license regulations for therapeutic massage; and approval to publish
ordinance in summary format Adopted with one change - deleted the capital investment
criteria. City attorney to revise ordinance and publish summary ordinance.
2. Codes and Standards Committee - The Codes and Standards Committee did not meet in July.
3. Design and Review Committee - The Design and Review Committee met in July to review a
request for variance for driveway expansion.
Miscellaneous Issues Page 1 7/30/10
4. City Center Transit Oriented Development (TOD) Study -There will be a joint Planning
Commission /City Council meeting on Wednesday, August 11 from 6:30 to 8:30 p.m. to discuss
the TOD study.
5. Joint Planning Commission and Citizen Advisory Commission (CAC) Meeting -A joint
Planning Commission and CAC meeting is scheduled for Tuesday, September 14, 6:30 p,m.
Please put this date on your calendar.
6. Commissioner Appreciation Picnic - The commissioner appreciation picnic is scheduled for
Tuesday, September 28. An invitation will be mailed with more information. Please put this date
on your calendar as well.
7. If you have any questions on any of these items, please feel free to contact city staff.
Attachments: Twin City Hardware
45th/Winnetka avenues water quality pond
Safe Routes to School - Sonnesyn
Summer Outstanding Business Award
RAVE! Award
July 6 Planning Commission minutes
Miscellaneous Issues Page 2 7/30/10