An open letter to sponsors of MN HF 52/SF 13, dealing with statutes for zoning variances in Minnesota:
As a professional planner of 20 years experience in several states, and a committed Conservative, I strongly oppose the proposed amendments in HF 52/SF 13. While I applaud harmonizing land use standards across city-township-county statutes, at least 40 out of 50 states currently use the “undue” and/or “unnecessary hardship” standard (as does Minnesota’s MS 462.357 Subd.6(2) as interpreted by the State Supreme Court in Krummenacher).
The proposed “practical difficulties” standard is antithetical to property rights and good public policy. Local government should not be able to grant variances to laws or regulations at whim. Do we grant variances to speeding tickets because the driver has a “practical difficulty” with the numerical speed limit? Property owners must be assured that their right to quiet enjoyment of their property will not change arbitrarily due to some nebulous interpretation of “difficulties”. If local governments cannot serve a public purpose with official controls in effect, they need to fix their ordinances, not just hand out variances to whomever can afford an attorney to make their case.
All citizens must enjoy equal protection of the law, as enshrined in the 14th Amendment of the United States Constitution. The “unnecessary hardship” standard has a long history of clear practice and judicial interpretation that should not be discarded without due deliberation. I urge you to reconsider this proposal and support a stronger rule of law with the “unnecessary hardship” zoning variance standard for both municipalities and counties.
My comments are my own, and not those of my employer or the Minnesota Chapter of the American Planning Association.
-John C. Shepard, AICP; Slayton, MN
This is a bit of “inside baseball” for the non-land planners among you. If you got this far, feel free to move on to lighter fare.
The MnAPA Legislative Committee has been discussing recent somewhat contradictory decisions from the state Supreme Court on variance standards in cities (Krummenacher v. City of Minnetonka) and counties (Stadsvold v. County of Otter Tail Board of Adjustment, both discussed here; MnDNR has a nice summary PDF here. MPR did a story this summer on some of the fall-out here.)
I lurk on the Legislative Committee and we were due to forward recommendations to the MnAPA Board this week. However, other parties pushed forward with the bill as currently proposed, and the MnAPA Board decided to sign on to the bill to as I understand it 1) support harmonization of city/twp/county statutes, and 2) keep a seat at the table as the bill moves forward. We’ll see how that goes.
[Edit: fixed Findlaw case references 1 March 2011]
STrib
The League of Minnesota Cities notes today that the Auto Dealers convinced the Builders, Realtors and State Chamber of Commerce to pull support for HF52, on issues unrelated to these concerns.
The upside is LMC is still holding strong on harmonization of municipal-county provisions. That itself is cause for optimism.
http://www.lmc.org/page/1/variancebill.jsp
Pingback: MN House Passes On Variance Bill | JC Shepard.com
Making variances easier to obtain, as a proposed piece of legislation (HF52/SF13) at the state capitol is designed to accomplish, means that a property owner will have less ability to count on his neighborhood continuing to have the characteristics it had when he moved in. It is not only bad policy, but it will make it exceedingly more difficult for a city to successfully defend denial of a variance because the substituted standard of “practical difficulties” provided for in the proposed legislation is so imprecise that it will only lead to litigation to determine what it means and how it is be applied.
HF52, relating to the grant of variances under city zoning codes, is a response to a Minnesota Supreme Court decision last year (Krummenacher v. Minnetonka, rendered without any dissent among the justices) that overturned an incorrect and unworkable Appeals Court decision (Rowell v. Board of Adjustment of Moorhead) rendered in 1989 on that issue.
What no one seems to remember, or is intentionally overlooking, is that last year’s Supreme Court decision returned the standard to be applied to a variance request to what it had been for nearly 25 years before the unfortunate and incorrect Court of Appeals decision in Rowell.
The “undue hardship” criteria was the standard set forth in the variance legislation when it was first passed by the state legislature in 1965, and was clearly defined by the legislature in an amendment in 1982. The “undue hardship” criteria has been an effective and workable standard for over 45 years, and there is no good reason to change it as the legislature proposes. This undue hardship standard requires that before a variance from the provisions of a zoning ordinance may be granted three factors must be me, as outlined in the statue: ” (1) the property in question cannot be put to a reasonable use without a variance, (2) the need for the variance is due to circumstances unique to the property and not created by the landowner and (3) if granted it will not alter the essential character of the neighborhood.”
Not only was Rowell incorrect, but also decisions of the Court of Appeals are not binding precedent, and so did not require municipalities to apply the incorrect “reasonable use” standard applied by the Appeals Court in Rowell. In fact the Supreme Court in commenting on the error of the Rowell decision said, “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.”
The League of Minnesota Cities commenting on the recent Supreme Court decision mischaracterized it as a narrow construction of the statute. The Supreme Court did not “construe” the statute. It found that where the statutory language was “clear and unambiguous” as it was in this statute in regard to what constitutes undue hardship “no construction is necessary or permitted” because the intention of the statute was “clearly manifested by plain unambiguous language.”
I was surprised to see Metro Cities, an organization that is supposed to be representing metro cities, (and the League of Cities as well) appear to be supporting real estate and developer interests in giving support to this bill. If there was any doubt about the assistance HF52 will provide to such groups, the opposition by the State Chamber of Commerce and the state auto dealers to the provisions of HF52, that give municipalities the right to impose conditions on the grant of a variance, as reported in the Mendota Heights Friday News of Feb. 4, should remove any doubt. Such groups apparently don’t want municipal government to have any reasonable control over the municipalities they serve.
It should be borne in mind that the grant of a variance is an authorization to disregard one or more provisions of a community’s zoning ordinance, ordinances which are adopted for the purpose of having in place a plan for the development and maintenance of a community in a reliable and dependable manner, and should be granted in only the most compelling circumstances. And that is why the “undue hardship” standard was adopted by the legislature in the first place, and that is why it should be retained.
Utilizing the “practical difficulties” —a fuzzy, imprecise standard at best—as HF52 proposes, will have the effect of permitting piecemeal rezoning, and will give developers the tools for compelling a municipality to do so. Instead, if there is a zoning provision that is giving rise to repeated requests for variances, the better solution is to address it by change in the zoning ordinance, where all those who may be affected by the change will have an opportunity to be heard, and the Council and Planning Commission will have better community input.
I hope the foregoing will provide a more balanced and historic perspective than what I have seen from Metro Cities and the League of Cities.