HomeMy WebLinkAbout#3 Ordinance AmendmentPlanning Commission Memorandum
To:
Planning Commission Members
From:
Kari Barker, Associate Planner, AICP
Date:
June 13, 2011
Item: Public Hearing -
Amend Hastings City Code Chapters 30.02 Board of Zoning
Adjustment and Appeals and 154.08 Administration and Enforcement –Variance Procedures
Planning Commission Action Requested:
The Planning Commission is asked to hold a Public Hearing to Amend Hastings City Code
Chapters 30.02 and 154.08.
Background Information:
A Minnesota Supreme Court decision in June 2010 drastically changed the interpretation of the
state law governing zoning variances. A coalition of groups subsequently approached the
Minnesota Legislature to change the law. After a somewhat lengthy negotiation, agreement was
reached with some business groups on recommended language. The Legislature adopted the
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recommended language on April 28, and the governor signed the bill on May 5. The law
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became effective on May 6.
The new statue makes the following changes:
1.The test for granting a variance will now be “practical difficulties” rather than “undue
hardship.”
2.Previously, the language said that a variance could only be granted when the property
could not be put to a reasonable use without the variance. That has been changed to
provide only that the proposed use is reasonable. This language was intended to
reinstate the interpretation of the old law that had been in effect for over 20 years. As a
result, the court decisions from those years should provide good guidance on interpreting
what is meant by reasonable.
3.Language was added to require that the variance be consistent with the comprehensive
plan.
4.The statute previously allowed cities to impose conditions “to insure compliance and to
project adjacent properties.” That language has been changed to require that conditions
must be directly related to and must bear a rough proportionality to the impact created
by the variance. This particular provision was the central point of contention with the
business groups.
Granting variances under the new law should be very similar to what was done before the
Supreme Court decision. There will now be five factors to consider:
• Is the proposed variance in harmony with purposes and intent of ordinance?
• Is variance consistent with the comprehensive plan?
• Does proposal put property to use in a reasonable manner?
• Are there unique circumstances to the property not created by the landowner?
• Will the variance, if granted, alter the essential character of the neighborhood?
Financial Impact:
N/A
Advisory Commission Discussion:
N/A
Council Committee Discussion:
N/A
Attachments:
Ordinance Amendment
ORDINANCE NO.______________, THIRD SERIES
AN ORDINANCE OF THE CITY OF HASTINGS, MINNESOTA AMENDING
HASTINGS CITY CODE CHAPTER 30BOARD OF ZONING ADJUSTMENT AND
APPEALSAND CHAPTER 154SUBDIVISION REGULATIONS:
VARIANCES
BE IT ORDAINED
by the City Council of the City of Hastings as follows:
Chapter 30.02 (F) of the Hastings City Code –Board of Zoning Adjustment and Appealsis hereby
amended as follows: (Additions to the ordinance are underlinedand section numbers may be
renumbered):
§30.02 BOARD OF ZONING ADJUSTMENT AND APPEALS
(F) Additional powers and duties; variances. The Board of Adjustment shall have the following
additional powers and duties: to authorize upon appeal in specific cases the variance from the
terms of Chapter 155 as will not be contrary to the public interest where owing to special
a literal enforcement of the provisions of the City Code would result in
conditions, and where
unnecessary hardshippractical difficulties. A variance from the terms of Chapter 155 shall not be
granted by the Board of Adjustment when supporting evidence indicates thatunlessand until:
(1)A written application for a variance is submitted demonstrating:
That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are
not applicable to other lands, structures, or buildings in the same district;
That literal interpretation of the City Code would deprive the applicant of rights commonly enjoyed by other properties in the
same district under the terms of Chapter 155;
That the special conditions and circumstances do not result from the actions of the applicant; and
That granting the variance requested will not confer on the applicant any special privilege that is denied by Chapter 155 to
other lands, structures, or buildings in the same district. No nonconforming use of neighboring lands, structures, or buildings
in the same district, and no permitted or nonconforming use of lands, structures, or buildings in other districts shall be
considered grounds for the issuance of a variance.
(1)Because of the particular physical surroundings, shape or topographic
conditions of the land involved, a particular hardshippractical difficultyto the owner would result, as
distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out;
(2)The conditions upon which the petition for a variance is based are
unique to the tract of land for which the variance issought and one not applicable, generally, to other
property with the same zoning classification;
(3)The purpose of the variance is not based exclusively upon a desire to
increase the value or income potential of the parcel of land;
(4)The granting of the variance will not be detrimental to the public
welfare or injurious to other land or improvements in the vicinity in which the tract of land is located;
(5)The proposed variance will not impair an adequate supply of light and
air to property, or substantially increase the congestion of the public streets, or increase the danger of fire,
or endanger the public safety or substantially diminish or impair property values within the vicinity; (Prior
Code, §11.08)
(6)The variance is in harmony with the purposes and intent of ordinance;
(7)The variance is consistent with the comprehensive plan;
(8)The proposal puts the property to use in a reasonable manner; and
(9)There are practical difficulties in complying with the official control.
"Practical difficulties," as used in connection with the granting of a variance means that:
(a)The property owner proposes to use the property in a reasonable manner not
permitted byanofficial control;
(b)The alleged difficulty or hardshippractical difficultyis caused by
the provisions of this chapter and has not been created by any persons presently or formerly having an
interest in the parcel of land;
1. A practical difficultyis not present if the proposal could be
reasonably accomplished under the current Ordinance requirements,
(c)The variance, if granted, will not alter the essential character of the locality.
(d)Economic considerations alone do not constitute practical difficulties.
(e)Practical difficulties include inadequate access to direct sunlight for solar energy
systems.
(10) The Council may impose conditions in the granting of a variance provided the conditions
must be directly related to and must beara rough proportionality to the impact created by the variance.
(211) Public hearings need not be held by the Council or Board of Adjustment
on applications for variances from Chapter 155 of the City Code. However, the Council or Board of
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Adjustmenmay, in its discretion, hold public hearings on a particular application for a variance. After any
public hearing held on a variance request, the body holding the public hearing shall forward its
recommendation on the application to the Council or Board of Adjustment;
(312) If a public hearing is not to be held by the Planning Commission or the
Board of Adjustment or the Council, owners of property within 350 feet of property involved in the request
shall be notified of the time and place when the application shall be considered by the Planning
Commission or Board of Adjustment or Council, which notification shall advise adjacent property owners
that they may be heard at the time and place;
(13) The Board of Adjustment shall make findings that the requirements of
division (F)(1) above have been met by the applicant for a variance;
(514) The Board of Adjustment shall further make a finding that the reasons
set forth in the application justify the granting of the varianceare reasonableand that the variance is the
minimum variance that will make possible the reasonable use of the land, building, or structure; and
(615) The Board of Adjustment shall further make a finding that the granting
of the variance will be in harmony with thegeneral purpose and intent of Chapter 155, and will not be
injurious to the neighborhood, or otherwise detrimental to the public welfare. In granting any variance, the
Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with provisions of
the City Codewhich directly relate to and must bear a rough proportionality to the impact created by the
variance. Violation of the conditions and safeguards, when made a part of the terms under which the
variance is granted, shall be deemed a violation of provisions of the City Code and punishable under
§10.99. Under no circumstances shall the Board of Adjustment grant a variance to allow a use not
permissible under the terms of Chapter 155 in the district involved, or any use expressly or by implication
prohibited by the terms of Chapter 155 in the district.
AND
Chapter 154.08 (C) of the Hastings City Code –Subdivision Regulations is hereby amended as
follows (Additions to the ordinance are underlinedand section numbers may be renumbered):
§154.08 ADMINISTRATION AND ENFORCEMENT
(A)Responsible official. It shall be the duty of the Council to see that the provisions of this
chapter are properly enforced.
(B)Building permit.
(1)No building permit shall be issued by anycity official for the construction of any
buildings, structures, or improvement of any land henceforth subdivided until all requirements of
this chapter have been fully complied with.
(2)Building permits shall be withheld for structures on tracts which have been
subdivided and conveyed by methods prohibited by this chapter and the city may refuse to take
over tracts as street or roads or to improve, repair, or maintain any such tracts.
(C)Variances. The Council, by a 2/3 vote of the entire Council, shall have the power to vary
from the requirements of this chapter when supporting evidence indicates that:
(1)Because of the particular physical surroundings, shape or topographic
conditions of the land involved, a particular hardshippractical difficultyto the owner would
result, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be
carried out;
(2)The conditions upon which the petition for a variance is based are unique to
the tract of land for which the variance is sought and one not applicable, generally, to other
property with the same zoning classification;
(3)The purpose of the variance is not based exclusively upon a desire to
increase the value or income potential of the parcel of land;
(4)The alleged difficulty of hardship is caused by the provisions of this
chapter and has not been created by any persons presently or formerly
having an interest in the parcel of land;
(54) The granting of the variance will not be detrimental to the public welfare
or injurious to other land or improvements in the vicinity in which the tract of land is located;
and/or
(65) The proposed variance will not impair an adequate supply of light and air
to property, or substantially increase the congestion of the public streets, or increase the danger of
fire, or endanger the public safety or substantially diminish or impair property values within the
vicinity; (Prior Code, §11.08)
(76) The variance is in harmony with the purposes and intent of ordinance;
(87) The variance is consistent with the comprehensive plan;
(98) The proposal puts the property to use in a reasonable manner; and
(109)There are practical difficulties in complying with the official control. "Practical difficulties,"
as used in connection with the granting of a variance means that:
(a)The property owner proposes to use the property in a reasonable
manner notpermitted byanofficial control;
(b) The practicaldifficultyor hardship is caused by the
provisions of this chapter and has not been created by any persons presently or formerly having an
interest in the parcel of land;
1. A practical difficultyis not present if the
proposal could be reasonably accomplished under the current Ordinance requirements,
(c) The variance, if granted, will not alter the essential character of the locality.
(d) Economic considerations alone do not constitute practical difficulties.
(e) Practical difficulties include inadequate access to direct sunlight for solar
energy systems.
(1110)The Council may impose conditions in the granting of a variance provided the conditions
must be directly related to and must bear a rough proportionality to the impact created by the variance.
All other sections shall remain unchanged.
ADOPTED
by the Hastings City Council on this ___day of ____, 2011.
_________________________________
Paul J. Hicks, Mayor
ATTEST:
______________________________________________
Melanie Mesko Lee, City Clerk
I HEREBY CERTIFY that the above is a true and correct copy of an ordinance presented to and
adopted by the City of Hastings, County of Dakota, Minnesota, on the ___dayof ___, 2011, as
disclosed by the records of the City of Hastings on file and of record in the office.
_____________________________________________
Melanie Mesko Lee, City Clerk
( SEAL)
This instrument drafted by:
City of Hastings (KSB)
101 4th St. East
Hastings, MN 55033