HomeMy WebLinkAbout08-04-10-WS Chair
Clayton Larson 1245 W. Highway 96
Commissioners EN HILLS Arden Hills, MN 55112
Andrew Holewa 651.792.7800
Liz Modesette www.ci.arden-hills.mn.us
Daniel Reiff Arden Hills
Samuel Scott
Roberta Thompson Planning Commission
Clayton Zimmerman Work SessionAngela Hames(Alternate) August 4, 2010
City Vision
A strong community that values our unique environment, our fiscal soundness,
and our tradition as a desirable city in which to live, work, and play.
Agenda
Call to Order—Role Call
1. APPROVAL OF THE AGENDA
2. Topics
A. Planning Commission Role and Land Use Application Process Discussion
3. ADJOURNMENT
A quorum of the City Council may be present at this meeting.
Planning Cases are available online at:
http://www.ci.arden-hills.mn.us/planningcases
EN
HILLS
MEMORANDUM
DATE: August 4, 2010
TO: Planning Commission
FROM: Meagan Beekman, City Planner
SUBJECT: Zoning & Land Use Information
Background
Land use and zoning regulations can be some of the most contentious issues and lead to some of
the most productive outcomes for a city. Cities have wide discretion in some types of land use
applications and very little in others. While the answers to land use questions are rarelyclear or
simple, there are State Statutes and legal precedent to guide the evaluation of land use
applications.
State Statute gives cities the authority to regulate how land may be used. The Municipal
Planning Act creates a single, uniform procedure that applies to all cities. Ordinances may vary
from city to city, but all must comply with both the substantive and procedural requirements
contained in the Municipal Planning Act. Metropolitan area cities are also empowered and
governed by the Metropolitan Land Planning Act. These acts adopted into State Statute occupy
the field of the process by which municipal land use laws are finally approved or disapproved.
Role of the Planning Commission
The Municipal Planning Act defines the role of a PlanningCommission and the procedures
through which they operate. State law requires that the Planning Commission must review
comprehensive plan and zoning ordinance amendments, as well as amendments to the official
map. The Planning Commission is also tasked with holding official public hearings required by
State Statute and the Zoning Ordinance, required for land use applications. In many cities
including Arden Hills, all land use applications are submitted to the Planning Commission for
review. With limited exceptions, the Planning Commission's role in reviewing all types of
zoning and land use applications is generally advisory. The City Council usually gives the
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Planning Commission recommendations great weight in their considerations, but is not bound by _
them.
In Arden Hills, as in most municipalities, the Planning Commission also acts as the Board of
Zoning Adjustment and Appeals. It is in this capacity that the Planning Commission hears
requests for variances from the zoning code and makes a recommendation to the City Council to
grant or deny the variance. Additionally, the Board of Appeals and Adjustment hears requests for
reconsideration of zoning applications or staff decisions, where it is alleged there has been an
error in the administration of the zoning ordinance. In some cities, the City Council has
delegated decision-making authority to the Planning Commission for variances.
Legislative versus Quasi-Judicial Decisions
Making Law
Cities have a wide range of discretion in developing a zoning ordinance and comprehensive plan
because it is in this capacity that a city is exercising the powers that the Municipal Planning Act
has granted. The adoption or amendment of a zoning ordinance is considered a legislative
decision of the city council, which includes the function of making the law for the city. Courts
generally give legislative decisions made by a city great deference and weight; however, the
court will on occasion set aside or intervene in city zoning decisions if two important
constitutional restraints in the federal and state constitution are violated.
First, the courts may overrule a city zoning decision when it determines that a zoning ordinance
is unsupported by any rational basis related to promoting public health, safety, morals, or general
welfare. This is known as the "rational basis standard" and it generally a very friendly standard
for cities to meet. In instances where the court overrules a city's decision, the court usually will
find that the city's actions were arbitrary and/or capricious. Second, when a zoning ordinance
denies the landowner practically all reasonable use of the land, resulting is a"taking" of the land
without just compensation; the court may order the city to pay compensation to the affected
landowner.
Applying Law
When drafting and adopting a zoning ordinance, cities have enormous discretion in choosing
their language and specifying uses as permitted, prohibited or conditional in each zoning district.
When using its legislative authority, the only limits on the city's zoning authority are that action
must be constitutional, rational and in some way related to protecting the health, safety and
welfare of the public.
In contrast, when administering an existing zoning ordinance by way of reviewing a land use or
building permit application the city's discretion is much more limited. Generally, when
reviewing a land use application, with the exception of zoning or comprehensive plan
amendments, the city is no longer acting in its legislative capacity. When reviewing land use
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applications, such as a variance, conditional use permit, site plan review, or subdivision request,
the city is said to be exercising a quasi-judicial function. Rather than legislating for the broad
population as a whole, the city is applying the law that was written when the city was in the
legislative role. Applying the law is a quasi-judicial or judge-like determination about an
individual land use application to determine whether the application meets the standards of the
city ordinance.
In quasi-judicial circumstances, the city must follow the standards and requirements of the
ordinance it has adopted. If an application meets the requirements of the ordinance, generally it
must be granted. If an application is denied, the stated reasons for the denial must all relate to
the applicant's failure to meet standards established in the ordinance. In sum, the city has a great
deal of liberty to establish the rules, but once established,the city is as equally bound by the rules
as the public. An application may generally only be denied for failure to meet the standards in
State Statutes or city ordinances.
The League of Minnesota Cities has provided a handout entitled, "Zoning Decisions"
(Attachment A). The last page of that handout illustrates the hierarchy between legislative and
quasi-judicial decisions in the form of the Planning and Zoning Discretion Pyramid. Please read
this document prior to the meeting. Additionally, Commissioners are encouraged to review the
handouts provided in their training books prior to the meeting. Much of the information that will
be discussed at the work session is discussed in the training book in much greater detail.
Variances
As a quasi-judicial action, the role of the planning commission in the granting or denying of
variance requests is laid out in Minn. Stat. § 462.3 57, sub. 6:
"To hear requests for variances 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, and to grant
such variances only when it is demonstrated that such actions will be in keeping
with the spirit and intent of the ordinance. "Undue hardship" as used in
connection with the granting of a variance means the property in question cannot
be put to a reasonable use if used under conditions allowed by the official
controls, the plight of the landowner is due to circumstances unique to the
property not created by the landowner, and the variance, if granted, will not alter
the essential character of the locality. Economic considerations alone shall not
constitute an undue hardship if reasonable use for the property exists under the
terms of the ordinance. Undue hardship also includes, but is not limited to,
inadequate access to direct sunlight for solar energy systems...The board or
governing body as the case may be may impose conditions in the granting of
variances to insure compliance and to protect adjacent properties. "
As shown in the above paragraph, State Statutes partially define "undue hardship" as meaning
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that "the property in question cannot be put to a reasonable use if used under the conditions
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allowed by the official controls". Until recently, lower courts in Minnesota had ruled that this
hardship requirement was asking cities to determine if the variance request itself was reasonable
and not asking if the overall use of the property was reasonable. That interpretation significantly
changed when the Minnesota Supreme Court recently reviewed a case, Krumenacher v. City of
Minnetonka, dealing specifically with a municipality's interpretation of this particular Statute.
The Court found that cities must use the letter of the law when reviewing a variance request for
finding an undue hardship. The letter of the law dictates that a city must be able to find that a
property cannot be put to a reasonable use without the granting of the variance in order to legally
grant a variance request. This decision substantively impacts the way cities throughout the State
of Minnesota will review variance requests moving forward, and makes the granting of a
variance much more difficult.
Conditional Use Permits
The zoning code lists the permitted, conditional, interim, and planned unit development uses as
well as certain prohibited uses in each district. The ordinance must also establish what
conditions or standards must be met to allow the conditional use. Conditional uses are a
permitted use provided that the applicant can meet the conditions specified in the ordinance.
Uses specified as conditional are uses, which are generally favorable and desired, but may also
pose potential hazards or impacts that need to be mitigated; an example might be a school in a
residential district. While the proposed use may be desirable, there may be extenuating impacts
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such as traffic and noise that need to be addressed. As a result of these potential impacts,
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additional planning commission and council review is necessary, as well as the attachment of
reasonable conditions,to mitigate these impacts.
Section 1355.04 Subd 3 of the Arden Hills Zoning Code lists out the general criteria through
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which an application for a CUP must be reviewed in Arden Hills and in most cities. Paragraph B
of this Section states: -
"The Council shall consider the factual findings, conclusions and
recommendations of the Planning Commission, as contained in its report, and
both shall consider the effect of the proposed use upon the health, safety,
convenience and general welfare of the owners and occupants of surrounding
land, in particular, and the community as a whole, in general, including but not
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limited to the following factors: existing and traffic anticipated is
p ff and parking
conditions; noise, glare, odors, vibration, smoke, dust, air pollution, heat, liquid
or solid waste, and other nuisance characteristics; population drainage; o ulation density;
ty;
visual and land use compatibility with uses and structures on surrounding land;
adjoining land values; park dedications where applicable,icabl e, and the orderly
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development of the neighborhood and the city within the p
general purpose and
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intent of this Zoning Code and the Comprehensive Development Plan for the
City "
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The criteria for reviewing CUPs are not specifically regulated by State Statutes. Cities can adopt _
necessary review criteria based on their individual needs. However, the criteria should be
specifically related to the additional impacts that a conditional use may have in a particular
district. Additionally, cities can include in their zoning ordinances varying review criteria for
different types of conditional uses.
The concept of a conditional use permit (CUP) was created to give cities more flexibility in
zoning ordinance administration. Generally, conditional uses are uses that may be too
problematic to be permitted uses in a district. However, since the use is still generally favorable
or necessary, outright prohibition of the use is generally not practical or desired. Conditional uses
seek to strike a middle ground between permitted and complete prohibition. It is important to
stress that conditional uses, like permitted uses, must be allowed if the applicant can prove that
the application meets all of the conditions and requirements of the city's ordinance and will not
be detrimental to the health, safety and welfare of the public. A CUP is not designed to be a
process for denial; it is simply a higher review process for uses that can be permitted.
CUPs are considered property interests that run with the land; that is, they pass from seller to
buyer when the land is sold or transferred. For this reason, time restrictions on a CUP are not
permitted in State Statute. A CUP only becomes invalid if the conditions of approval are
violated. Interim Use Permits are very similar to CUPs; however, by their very Y nature the are
allowed to have time limits attached to them.
Findings of Fact
In addition to minutes, whenever the Planning Commission makes an official recommendation
related to a matter referred to it by Council or on a land use application submitted to the City, it
must also make findings to support the recommendation. This includes such requests as a
conditional use permit, zoning amendment, variance or subdivision application.
Findings of fact should state all of the relevant facts the Cityconsidered in making its decision
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on the zoning application. A fact is relevant if it proves or disproves that the application meets
the legal standards of the City's ordinances and state law for granting the zoning request. For
example, applications for conditional use permits and variances, which are subject to particular
standards that have been spelled out in City ordinances, State Statute, or by a court decision,
should have findings of fact that relate directly to those standards. In evaluating any particular
zoning request, the reviewing body should apply the relevant facts to the particular standards that
govern the specific type of decision being made.
Findings of fact from the planning commission serve three important roles:
• They articulate to the City Council the Planning Commission's recommendations on
issues before the Commission, including its basis for making its recommendations.
• They communicate to a land use applicant the Commission's approval of a project or
identify for the applicant disapproval and the reasons for such approval disapproval.
pp or pp
• They support the City's decision on the issue should the City's decision be challenged in
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court.
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In land use cases, Minnesota courts are looking for a sufficient record of the reasons given by a
city to grant or deny an application request. The reasons given by a city must be legally sufficient
and have a factual basis. Minnesota case law and statutory law demand that the reasons for a
city's decision on a land use case be articulated in the official record. For this reason, Staff
prepares written finds of fact within the planning case report received by the Planning
Commission. The findings of fact can, and should, be amended by the Planning Commission if
they vote to recommend a different outcome than one recommended by Staff. Furthermore, the
Planning Commission may be asked to address a specific review criterion by stating a finding of
fact in their motion to approve or deny. This happens most often when Staff feels that a
particular application, and its merits, could be interpreted in more than one way.
In cases where the findings need to be further developed, the Planning Commission or City
Council can table the application to provide staff with time to write proper findings provided the
application will not exceed the 120 day review period.
Staffs Role
Staff s role is to prepare accurate reports outlining the background of a pp
articular application,
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and reviewing it against the requirements of the Zoning Code. Staff is also tasked with ensuring
that the City is following the proper timeline in order to ensure that the time review limitations in
State Statute 15.99 are met. In most planning cases, the City must make a decision within 60
days of receiving an application but may extend the review period an additional 60 days if
needed. Beyond those 120 days, the City must receive written approval from the applicant for
additional review time.
In addition, Staff prepares an analysis of the application, findings of fact for the record, and the
motion language to approve, table, or deny the application. In some communities, Staff is asked
to provide a recommendation in the report based on their professional opinion of the facts of the
case.
It is useful to reflect on current practices from time to time in order to ensure that the information
provided to the Planning Commission, and the format in which it is presented, is as effective as
possible. Staff is requesting a brief conversation during the work session to discuss Staff s role
and if there are aspects of planning case reports that the Planning Commission would like to see
adjusted.
Possible ZoninLy Code Amendments
In light of the recent Minnesota Supreme Court ruling regardingvariances, it may be a good time
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to review the Arden Hills Zoning Code for opportunities to make amendment that will
circumvent the need for some variance requests altogether. There are certain types of variance
requests that are more common than others. It is possible for the City p g to adopt changes to the
6
Zoning Code, similar to the Front Porch Ordinance, which would create circumstances where
certain types of development could occur without the need for a variance.
In the past, some communities would use the variance process as a way for cities to take a more
hands on approach in the review and approval of projects. Based on the purpose of a variance, as _
defined in state law and interpreted by the courts, using the process as a tool to review Jro'ects
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on a case by case basis as to whether the project is reasonable is no longer an appropriate use of
that tool. Variances are designed to be used sparingly and only in those situations where a
property can not be put to a reasonable use if it were forced to be developed in accordance with
the existing ordinances of the city.
As part of the work session discussion, Staff would like to include time to discuss the Planning
Commission's opinion on incorporating changes to the Zoning Code that would allow certain
types of development, which currently would require a variance, to be reviewed administratively.
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In Arden Hills, a common variance request is for a relatively small encroachment into a setback.
Some cities already have provisions that allow this type of flexibility through an administrative
review. For example, Burnsville's City Code (Attachment B) includes setback exemptions for
residential properties for small additions to the front, side or rear of a home under certain
circumstances. Other possible opportunities for changes may involve; detached garages in the
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front yards of lakeshore lots, garage additions of a single stall on existing single le or two stall
garages, reduced side yard setback on corner lots, reduced setbacks for accessory structures in R-
2 and R-3 districts, or reduced front yard setbacks.
Attachments
A. League of Minnesota Cities, "Zoning Decisions",handout
B. Section 10-12-5 of the City of Burnsville's Zoning Code
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Attachment A
League of Minnesota Cities, "Zoning
Decisions handout
It
�HELS
August 4, 2010,Planning Commission Work Session
001
CONNECTING & INNOVATING _
LEAGUEOF,--.m A. SINCE 1913
M' I"NNTESU1
CITIES
RISK MANAGEMENT INFORMATION
ZONING
DECISIONS
Zoning deci
sions are the source of controversy and confusion in many communities.
authority and the standards associated with various zoning tools is
Understanding a city's zoning Y
controversy and dispelling confusion. This memo discusses the nature of
important m navigating Y .
a cityg
's decision-makin authorit and the legal standards associated with variances, conditional
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use permits, and nonconformities.
Level of Authority
method of establishing land pattern by regulating the way land is used by
Zoning is a m g a use landowners. A zoning ordinance, c
omprised of text and a map, generally divides a city into
various districts and regulating sets standards re ulatin uses in each district. A city has considerably broader
authority when creating g
reatin its zoning ordinance than it does when administering the same ordinance.
it is important for a city to be.aware of what authority it is acting under whenever
Consequently, p y
making a particular zoning decision.
When g
ado tin or amending a zoning ordinance, a city -
adopting
council is exercising so-called "legislative" authority. More Information
The council is advancinghealth, safety, and welfare by
Learn more about zoning decisions In
making rules that apply throughout the entire
community. When acting legislatively, the council has Zoning Guide for Cities
broad discretion and will be afforded considerable
deference b any reviewing court. City councils are
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ultimately accountable to the voters for legislative decisions.
'n zoning ordinance, a city council is exercising so-called
In contrast, when applying an existing g y
quasi-j udicial" authority.thorit . The task is to determine the facts associated with a particular request,
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and then apply those facts to the legal standards contained in the zoning ordinance and relevant
state law. A city co
uncil has less discretion when acting quasi judicially, and a reviewing court
r the city council applied rules already in place to the facts before it. In
will examine whether y PP general, if the facts indicate the applicant meets the relevant legal standard, then they are likely
entitled to the approval. Variances and conditional use permits are two commonplace zoning tools
that are quasi-judicial in nature.
a city has when making legislative versus quasi-judicial decisions is
The amount of discretion y g g
the planning and zoning pyramid of discretion, appended to this memo.
represented by p g g
This material is provided as general information and is not a substitute for legal advice.
Consult your attorney for advice concerning specific situations.
LEAGUE r E OF M I N E SOTA CITIES 145 tJNIVERSITY AVE.WEST PHONE:(651)281-1200 FAX:(651.)281-1298
1 N S U RA N C E TRUST ST. PAUL MN 55I03-2044 TOLL FREE:(800)925-1 122 WEB:WWW.I..MC.ORG
Variances
Variances are an exception to rules laid out in a zoning ordinance. They are permitted departures
from strict e��forcement of the ordinance as-applied to a particular piece of property if strict
cause the owner"undue hardship." Variances are generally for dimensional
enforcement would P
standards (such as setbacks or height limits) and may not be used to allow a use that is prohibited
in the particular zoning district. Essentially, variances allow the landowner to break the
dimensional rules that would otherwise apply.
Undue hardshipis a legal standard set forth in Minn.
Stat. § 462.357, sub. 6. Minnesota cities must apply More Information
the state statutory standard when considering L.MCIT has answered cities' most
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a lications for variances. The statute provides that frequently asked questions related
.
requests for variances are heard by a body called the to.
board of adjustment and appeals; in many smaller
communities planning the lannin commission serves that Variances
function. Generally, the board's decision is subject to 0 Land Use Nonconformities
appeal to the city council. Under the statutory undue
PP Conditional Use Permits
hardship standard, a landowner is entitled to a
variance if, and only if, the facts satisfy the three-
factor test for undue hardship.
c or is that the property cannot be put to a reasonable use without the
The first undue hardship fat p p. Y
variance. This factor means the landowner would like to use the property in a particular
reasonable manner but cannot do so under the rules of the ordinance, It does not mean the land
cannot be an put to reasonable use whatsoever without the variance.
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The second undue hardship factor is that the landowner's plight is due to circumstances unique to
the property not caused b the landowner. The uniqueness generally relates to the physical
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-characteristics of the particular piece of property;that is,to the land and not personal
considerations
of the landowner. The statute further notes that economic considerations alone
cannot create an undue hardship._
factor is that the variance, if ranted, will not alter the essential character
The third undue hardship fa g
i This factor generally contemplates whether the resulting structure will be out of
of the locality. g Y P
scale, out of place, or otherwise inconsistent with the surrounding area.
If the facts surrounding a variancepp Y
application satisfy all three of the statutory factors, then the
landowner is entitled to the variance. Whatever the ultimate decision on a particular variance
application, city should carefully consider each of the three factors of the statutory undue
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hardship standard. While past practice may be instructive, it cannot replace the need for analysis
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of all three of the undue hardship factors. Cities should review their zoning ordinance for
provisions relatingto variances to be sure they are consistent with the state statutory standard for
undue hardship.
issuing man variances to a articular standard,then the city may wish to
If a city finds it is i g y P
consider the possibility of amendingthe ordinance to change the standard. In other words, if a city
2
is consistent) allowing landowners to break a articular rule, perhaps the need for the rule should
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be revisited. It could appear that the properties' plight was not particularly unique, or even that
there is not an underlying reasonable basis for the rule. City councils have broad legislative
authority when writing the rules, but when evaluating a variance application cities are limited to
the quasi judicial role of applying the state undue hardship standards to the facts before them.
Conditional and Interim Use Permits
Whether to grant or deny a conditional use permit application is
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another zoning decision that is quasi-judicial in nature. A
conditional use is a use that is generally compatible with a Conditional use permits
particular zoning district but because of hazards inherent in the are authorized under
use itself or because of special problems that its proposed location Minn. Stat. §462.3595.
.may present, the use is allowed by permit only if the special
concerns are addressed as set forth in the zoning ordinance.
The zoningordinance typically details both the general standards that apply to all conditional uses,
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and the specific conditions that apply to a particular conditional use in a given zoning district. The
conditions must be reasonable and practical. Unlike a permitted use, which a landowner is
generally entitled to as a matter of right, a conditional use is allowed only after a statutorily
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required public hearing. Reasonable conditions may be attached to a conditional use permit based
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upon factual evidence contained in public record.
City councils sometimes misunderstand the level and the
nature of discretion they have when reviewing Learn More
applications for conditional use permits. If a proposed
conditional use satisfies the conditional use standards set [the
rn more about land use issues in
forth in the zoning ordinance, then generally the
land use section of the League's
. . site.
landowner is entitled to the conditional use permit. The
city made the legislative decision about the
appropriateness of a kind of use in a zoning district when the council adopted the ordinance
providing rovidin for the use as conditional. When considering a conditional use permit application, the
city is tasked with the more limited quasi-judicial role of considering whether the facts of a
particular application satisfy the standards set forth in the ordinance. If the belief is that a kind of
use is
a unacceptable in given zoning district, then consider not listing the use as a conditional one
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in the district in the first instance.
A conditional use permit is a property right that"runs with the land" so it attaches to and benefits
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the land and is not limited to a particular landowner. The state statute provides that a conditional
use permit shall remain in effect as long as the conditions agreed upon are observed. The attorney
general has opined that time limits such as sunset provisions or automatic annual review to include
g p possible termination are not consistent with state law. The attorney general explained that cities
may not enact or enforce ordinance provisions for conditional use permits which allow the city to
terminate permits regardless of whether or not the conditions agreed upon are reserved. However,
a city can certainly revoke a conditional use permit if there is not substantial compliance with
conditions, so long as the revocation is based upon factual evidence, after appropriate notice and
hearing.
3
If a city wishes to place time constraints on particular
use_s,then the appropriate zoning tool is an interim .
conditional use permit.
Hi hl� ht
use permit, rather than a p
Cities may wish to employ interim use permits for Passed in 1989, Minn. Stat. §
uses that are not consistent with the city's long term 462.3597 authorizes interim use
plan and vision for the particular area, or where the permits for a temporary use of
use itself has a limited lifecycle. Interim use permits property until a particular date, until
should be provided for in the city's zoning ordinance. the occurrence of a particular event,
A public hearing is required prior to issuance, and the or until zoning regulations no longer land owner generally enters into an agreement with permit it.
the city.
Cities should periodically revi
ew their zoningordinances to determine whether the conditional
uses listed are uses that remain appropriate for the particular zoning district, and to make sure the
conditions under which the uses will be allowed are specifically set forth. Cities have broad
legislative discretion when establishing uses and conditions in their ordinance. But when
administering conditional uses set forth in the ordinance, cities are acting in their more limited
quasi
-judicial capacity ca acit and are constrained to applying the standards in the ordinance to the facts
of a particular application.
Nonconformities
Legal nonconformities are those that were legal Definition
when the zoning ordinance or amendment was
he complied withpreexisting [Nonconformitiessre uses, structures,
adopted, in that they p
Legal nonconformities ts that do not comply with the
ordinance and law. gutor ri ht to continue. The ent zoning ordinance.
generally have a statutory g
rights of legal nonconformities are often referred to
as grandfather rights. In contrast to legal
nonconformi
ties, non-legal nonconformities are those that were not permitted when established
and they do not
have the rights associated with legal nonconformities. Before assuming a
particular
nonconformity
is entitled to the statutory right to continue, it is important to consider
whether the nonconformity ever complied with
existing ordinance or law.
Something to Think About
Legal nonconformities may be continued, including Under Minn. Stat. §462.357, sub. 1e,
through repair, replacement, restoration, any legal nonconformity generally
maintenance, or improvement, but not including has a right to continue unless(1)the
expansion. There is a limitation to the continuance use is discontinued for more than
rights for nonconformities in National Flood one year,or(2)the structure is
Insurance Program (NFIP) floodplain areas. destroyed by more than 50%of its
Despite their right to continue without complying assessed market value, and no
with the current zoning ordinance, it is important to building permit is applied for within
keep in mind that all legal nonconformities must 180 days.
generally comply with other city ordinances, such JJ
as a nuisance ordinance or a licensing ordinance.
4
hind le al nonconformities was that the property would eventually -
Historically, the theory be g
^n� 1< <,��ith the zoning ordinance. The statutory_right to continue was more limited, and cities
w p Y � • • process called amortization. Furthermore,
could phase out nonconformities over time through a
the nonconformity could not be upgraded or replaced, and nonconforming rights would cease if the
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nonconformity was discontinued or destroyed. But in 2001, the legislature prohibited _
amortization, except for adult uses. And in 2004, the legislature both altered the rule about
destruction and afforded nonconformities the right to replacement, restoration or improvement, but
p not expansion. Cities should review their ordinance provisions concerning nonconformities and
make sure they are consistent with the current state statute.
Creating a Record
Whatever the nature of or standard for a particular zoning decision, a city should create a record
rt it. If the city action is challenged, courts will review the decision on the public
that will support y g
record. The record must demonstrate the cityexercised the appropriate level of discretion and
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a lied the relevant standards in a reasonable fashion. It may not matter that the city acted
reasonably if the city is unable to rove its actions through the public record.
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When creatinga record to support a zoning decision,
form
every city should be aware of Minnesota's 60-day More In .ation
rule. Under Minn. Stat. § 15.99, a city must either Learn more about the 60-day rule in:
approve or deny a written request related to zoning .„ _
pp , The 60 Day Rule Minn. Stat.
within 60 days of the time it is submitted to the city.
may extend the time period for an additional Sec. 15.99
The city y
60 days, but only if it does so in writing before
expiration of the initial 60-day period. Under the rove 60-
day rule, pp or den
failure to a request within the statutory time period is deemed an
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approval. So i 's vitally important that cities scrutinize applications as they come in the door to
re all required information is resent, and then to process those applications in an
first make sure q p
expeditious manner.
Holding a public hearing is an important component Something to Think About
in developing the record. Public hearings are
generallyrequired before the adoption of any zoning Under Minn. Stat.462.357,
or amendment and before the ranting of subdivision 3, novice of the time,
ordinanceg
conditional use permits, or rezonings. place, and purpose of the hearing
variances,
must be published at least 10 days
prior to the day of the hearing. If
Public hearings should include a complete disclosure n area of five
i proposed and a fair and open the decision affects a
of what s being prop p acres or less, mailed notice may be
assessment of the issues raised. A public hearing
'
public required to property owners within
should include an opportunity for the general p a 350-foot radius of the land in
and interested parties to hear and see all the
question.
information and to ask relevant questions, provide
p
additional information, and express support or
opposition. In order to help the public hearing
5
process run well, p y it is helpful for the city council to develop a written set of policies and
procedures to follow at each public hearing.
Neighborhood opposition is perhaps the most challenging issue for any city council or planning
_ g pp p p
commission to deal with when considering the merits
of a particular zoning application. Case law holds that More Information
the views of neighbors should not be the sole basis for L
it is helpful to Learn more about cities'authority to
a particular city action. In this regard, p
distinguish between what might be termed the regulate land in:
g g
"quantity" of the comments, as opposed to the The Land Use Cook Book:It's Not
"quality" of the comments. For example, well- All Cookie Cutter
supported testimony that brings forth relevant facts is
the kind of information upon which a city council can
unsupported. On the other hand, and unsubstantiated emotional opposition to a particular
project should not be the basis for a decision.
After a public hearing, the city should make
findings to support its decision. In the case of a Your League Resource
denial of a particular zoning application,
- Zoning decisions can be controversial
Minnesota's 60 day rule requires the reasons for
' ' and confusing, and this memo is by no
denial be put in writing and those reasons be
means a comprehensive discussion of
adopted within the statutory timefrarne. Failure to all issues that mayarise. If you have
do so may result in the city council decision being
y y further questions relating to zoning
overturned. Even where the application is decisions, please feel free to contact
approved, a written statement explaining the Jed Burkett, Loss Control Land Use
decision is advisable. Attorney, at:
The written statement
h ritt n explaining the reasons for the 651-281-1247 or iburkett@lmc.org
p g
zoning decision is particularly important for quasi-
When dealing with particular issues, it
judicial decisions such as variances and conditional is also important to seek specific legal
use emits. The League recommends the city p
p g advice from your own city attorney.
adopt written,findings of fact and conclusions of
law whenever a city makes such decisions. The
document should identify the relevant legal criteria
such as statutory standards or code provisions, explain the relevant facts relating to the particular
application, apply and then a 1 those facts to the legal criteria. The document should provide a court
pp
with everything needed to uphold the zoning decision.
Jed Burkett 3/10
6
Permit-,
v
N Site Plan
0 Review rMOL
cD
o
Conditional Use
� Permit
� Variances
0
rt
Subdivision/Plats
rMIIL
Zoning
Comprehensive Plan
Planning & Zoning Discretion Pyramid
The bottom of the pyramid is where a city has the most discretion—when creating a
comprehensive plan and corresponding land uses ordinances, such as a zoning ordinance. A city
has less discretion when making quasi-judicial decisions as represented by the middle of the
pyramid—the city is constrained by the ordinance and law that make up the foundation below.
7
Attachment B
Section 10- 12-5 of the City of
Bumsville's Zoning Code
August 4, 2010, Planning Commission Work Session
Sterling Codifiers, Inc. Page 5 of 7
Boat launch ramps.
Fishing, hunting and swimming areas, not including swimming pools.
Horseback trails.
Provided, that any required structures shall be accessory structures not designed for human
habitation, and that any uses that include the shooting of firearms, bows, and other weapons
shall not be permitted on property of less than ten (10) acres. (Ord. 375, 7-2-1990)
The section below has been affected by a recently passed ordinance, 1196
HOUSEKEEPING ORDINANCE. Go to new ordinance.
10-12-5: LOT AREA, LOT WIDTH AND YARD REQUIREMENTS:
(A) Lots:
Lot area (interior) 10,000 square feet
Lot area (corner) 12,000 square feet
Lot width (interior) � 80 feet -
Lot width (corner) 90 feet
Setback - principal structure:
❑ Front yard 30 feet
Side yard � 10 feet
❑ Side yard (street) � 20 feet
❑ Rear yard � 30 feet
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Sterling Codifiers, Inc. Page 6 of 7
Setback - accessory
structure:
❑ Front yard � 30 feet
❑ Side yard 5 feet
❑ Side yard (street) 20 feet
❑ Rear yard ��8 feet
Setback - parking:
❑ Front Driveway only
Side interior 5 feet
2 feet for trailers and camping vehicle
storage
❑ Street side � 10 feet
❑ Rear yard ��5 feet
(Ord. 244, 11-15-1982; amd. Ord. 278, 6-17-1985; Ord. 1053, 11-6-2006)
(B) Front Yard: The front yard setback for a principal structure in an R-1 district shall be thirty
feet (30'). The setback may be reduced to twenty feet (20') if the following conditions are
met:
1. The setback reduction is for an attached living area or porch to the principal structure,
not including the garage, which does not exceed a total of one hundred twenty (120)
square feet of above grade finished livable space.
2. The exterior materials of the proposed living area or porch are consistent or
complementary in color, texture and quality with those visible at the front of the
dwelling.
3. The roof of the proposed living area or porch is properly proportioned to and integrated
with the roof of the dwelling.
4. Plans are approved by the development review committee.
5. The structure does not adversely affect drainage on the lot or neighboring properties.
(Ord. 887, 7-21-2003)
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Sterling Codifiers, Inc. Page 7 of 7
(C) Side Yard: The side yard setback in an R-1 district shall be ten feet (10'). The setback
may be reduced to five feet (6) if the following conditions are met:
1. The setback reduction is for the garage structure, and
2. There is a minimum of fifteen feet (15') between neighboring structures. (Ord. 274, 2-4 -
-1985)
(D) Rear Yard: The rear yard setback for a principal structure in an R-1 district shall be thirty
feet (30'). The setback may be reduced to twenty feet (20') if the following conditions are
met:
1. The setback reduction is for an attached living area to the principal structure, not
including the garage, that does not exceed a total of three hundred (300) square feet of
above grade finished livable space.
2. There is a minimum of forty feet (40') measured at the closest point, between the
attached living area and the neighboring principal structure and any attached living
area to the rear.
3. The structure does not adversely affect drainage on the lot or neighboring properties.
(Ord. 830, 11-5-2001)
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