Loading...
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 e -mail law@jspattorneys.com Writer's Direct Dial No.: (763) 201 -0211 AMANDA M. FURTH e -mail sas@)jspattorneys.com 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: $120,000.00 Sale Date: 12/1994 Sale Code: r C C7! rage i of i 2010 http://gis.co.hen-nepin.mn.us/HCPropertyMap/Locator.aspx 6/24/2010 Hennepin County Property Map - Tax Year: 2010 The data contained on this page is derived from a compilation of records and maps and may contain discrepancies that can only be disclosed by an accurate survey performed by a licensed land surveyor. The perimeter and area (square footage and acres) are approximates and may contain discrepancies. The information on this page should be used for reference purposes only. !, Hennepin County does not guarantee the accuracy of material herein contained and is not responsible for any misuse or misrepresentation of this information or its derivatives. S E PLAN DECLARATION I GERT €EY Tt-JA T i AM THE 'PROPERTlr CiAr` O OQaA!_ : . y rsj 1. `:�';vT1'd!✓t.4c Tt{rt! iGLIv7 i PL;- i ✓L�SkE'•? {'�T , ATE LOT 5 / 'I N 88'44 ° 27" W f -- .100.00 - FOUND 1/2 co co � 40 I X12.3 I 1 !V N q 19.9 — 1 32.3 43.4 LOT ----------- - - ---r 23.3y� ---------- ' BLOCK 5 W G cv o OVERHANG 1 )o --i LOT 4 o N ® b O N + W 'n N I ` -• t • a l l 1 1.9 29 43.3 h h (/) 0 N --- --- ------- - - ----- ( Z n rM M w C .� of 1 c ' 4.1 F— to Y I M c � K i I N ! i P o 31.4 c ----- . - - - -- 22.3 )► ' 3q , 40 N 1 � i r t ! -- 100.00 -- S 88 °44 ° 27" E I o FT � � i Ae 4124 4125 4124 N m o o `<°- o o_ 4116 7 m 4116 ° ° 411 „ y 4os5 GETHSEMANE 4108 4109 z 4108 4090 4095 4089 4090 4095 CEMETERY a 4100 4101 A 4100 4083 0 4084 4089 Y 4084 4089 z 4082 4081 z 4082 4077 1 c 4076 4083 4081 4078 4076 4075 4076 4077 4075 0 4071 4070 4070 C 4070 4069 4070 4071 4069 Z A m 4064 4063 4064 4065 m 4064 4065 4064 4063 4058 4057 4058 4057 4056 4057 4056 4057 9008 9000 8924 4051 4052 4051 z 4052 4051 401%2 AVE N i g a 4032 m ti w a o Q+ a m oo m ao ° og oa a to w o K 4024 to 4025 d' o oa°o ° ° m m aaMO e a "I. 4016 '$� o a , oo w a eo co 00 00 0o co -ao m ao N ' 4019 4008 — 3989 4000 0 0 0 M �°� c c cr $501 3994 a • M 3972 *u v 401 d a ° ag o�"o �o ° r� a� eo �o u� $ 03 3 0o ao 0o a 3981 Z �, eo «+ m co 3984 3964 4009 3989 3941 �t d h ry! 39 � a �o as a� o `�° o o 974 c`� 3956 3973 4001 395 e °- ti r rn � sp m a 3981 M M M M �,�eA oo eo m ao M M o0 00 AVE ►�► 3924 3948 3965 v co ti�ti�� t 396 3948 HOPEWOOD LA w� 3973 3957 3940 ; o go gR� k w� 3 393 a a M ro cb 9109 9 u= a+ �'+ Q+ °; qiy ` c3 a °° "' SCONSIN gam, 9101 g '� ry4` � w`� �, � 3916 �� s W 4�Y , 4�o i� O �6 ` � pp 5 ►. `b ' '� ► a 3908 N oo N N t, W , NORTHW60 t7 969 9008 � K PARK z ` p 5093 00� 3830 Rr�'� `'' M o m S' AVE N 9087 $ 90 3820 3808 �~ 39 823 m o '. ti�� 381 3604 H z 3825 3806 G�� 895 ���`���'� �' �"�� '�' ?�' � `�J,> i"xt ao c 3� ���w r t0 9001 BOONE CIR «� 8948 t � r, , r z� . n ..n .. 5, ._; : 3800 3817 co N eo m « 8933 894 6925 8932 902;1 8917 892A 1 903 3749 � 891 t' T 8909 8908 3732 SSW 10 38TH AVE N 3601 M N N N N 04 m a m o0 w we 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