Navigation Through Variances and Nonconforming Uses in the Development Process

Navigation Through Variances and
Nonconforming Uses in the Development Process

Presented by:
Patrick J. Kelly, Esq.

I. Introduction

As communities and neighborhoods change, land uses that were once appropriate in a certain area may no longer apply. Municipalities have the authority to change zoning regulations and restrictions to accommodate new uses. These restrictions attach to and run with the land. Zoning acts create districts within the municipality which follow the policies and goals of the city’s comprehensive (land use) plan. See Orme v. Atlas Gas & Oil Co., 217 Minn. 27, 13 N.W.2d 757 (Minn. 1944).

The rationale behind municipal zoning power is that effective land use planning is necessary to promote and protect the interests of the entire community and that individual rights must be balanced against the greater good. See Austin v. Older, 278 N.W. 727, 730 (Mich. 1938) (finding that the purpose of zoning restrictions is to keep property uses within territorial confines and limit the continuance of nonconforming uses).

But municipalities do not have unlimited authority to change zoning ordinances without considering pre-existing uses. Regulations that do not further a legitimate government interest may be struck down as unconstitutional. Regulations that deny property owners all reasonable use of their property may be found to be an unconstitutional taking. Additionally, pre-existing structures and uses that do not conform to zoning ordinance changes may be grandfathered under old ordinances and become lawful nonconforming uses.

Practice Tips:

  1. Review Comp Plan
  2. Review Zoning
  3. Review Planning Commission’s yearly report of past activities
  4. Review variances granted in the past 3 years
  5. Review non-conforming uses granted
  6. Call Planner or Associate Planner to obtain additional information

II. The Power to Zone

  • MN Stat. 462.357, subd. 1:

Authority for zoning. For the purpose of promoting the public health, safety, morals, and general welfare, a municipality may by ordinance regulate on the earth’s surface, in the air space above the surface, and in subsurface areas, the location, height, width, bulk, type of foundation, number of stories, size of buildings and other structures, the percentage of lot which may be occupied, the size of yards and other open spaces, the density and distribution of population, the uses of buildings and structures for trade, industry, residence, recreation, public activities, or other purposes, and the uses of land for trade, industry, residence, recreation, agriculture, forestry, soil conservation, water supply conservation, conservation of shorelands,… access to direct sunlight for solar energy systems,… flood control or other purposes, and may establish standards and procedures regulating such uses. (emphasis added)

  • The authority for a zoning ordinance is derived from the general police powers possessed by the state. The Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
  • The City then receives its power to zone by a legislative grant of authority from the state.
    • The City cannot exceed the limits imposed by the enabling legislation of MN Stat 462.357 (Costley v. Coromin House Inc., 313 N.W.2d 21 (Minn. 1981).
  • Property used for government purposes:
    • requires balance of power between governmental and proprietary purposes
    • Eminent Domain
  • Retroactive effect of zoning ordinance: may be applied retroactively, even if it denies a building permit or site plan made prior to the effect date of the new or amended ordinance
  • Process: zoning power must conform to procedural requirements
    • Notice
      • if changing district boundaries affecting five acres or less, city must mail notice to each affected land owner at least ten days prior to the hearing
      • affected land owners include owners of property situated wholly or partially within 350 feet of the property to which the ordinance/amendment relates. Minn. Stat. §462.357, subd. 3
      • failure to give notice does not invalidate proceedings if City made a bonafide attempt to comply with MN Stat 462.357, subd. 3:
        “Subd 3: …A notice of the time, place and purpose of the hearing shall be published in the official newspaper of the municipality at least ten days prior to the day of the hearing… For the purpose of giving mailed notice, the person responsible for mailing the notice may use any appropriate records to determine the names and addresses of owners. A copy of the notice and a list of the owners and addresses to which the notice was sent shall be attested to by the responsible person and shall be made a part of the records of the proceedings.”
    • Public Hearing
  • Amendment: Power to amend and revise zoning ordinance is similar to City’s power to enact the original plan (promote public health, safety and welfare)

III. Construction of Zoning Ordinances

  • Strict construction
  • Construe zoning ordinances
  1. according to the plain and ordinary meaning of their terms;
  2. in favor of the property owner, and
  3. in light of their underlying policy goals

IV. The Comprehensive Plan

  • The comprehensive plan is often referred to as the land use map or guide and serves as the land planners’ vision for a particular section of the community. The comprehensive plan serves as the foundation for zoning decisions.
  • The comprehensive plan contains objectives, policies, standards and programs to guide public and private land use. The overall purpose of the comprehensive plan is to assist the public and the private sector in planning for physical, social and economic development.
  • The comprehensive plan will:
    • Guide future growth and development in an orderly manner;
    • Define the proper functional relationships between different types of land uses;
    • Help to coordinate public and private sector decisions;
    • Encourage orderliness and economy in City government;
    • Establish a framework to guide and involve citizen participation in City government; and
    • Provide for a sense of community and neighborhood identity.
  • The City’s comprehensive plan does not just consider what is happening within the City’s borders. It must also consider the plans of the surrounding cities and the region. The regional plan is prepared by the Metropolitan Council. Any amendments to the City Plan must be sent to the Metropolitan Council for their review. This process assures that the City Plan will be consistent with regional policies.
  • The Comprehensive Plan will usually contain:

A. COMMUNITY BACKGROUND

  • generally includes:
    • history
    • relevant issues
    • trends in the community, and
    • visions for the future.

B. COMMUNITY AND NEIGHBORHOOD IDENTITY

The City’s comprehensive plan focuses on encouraging and strengthening of neighborhood and community identity.

The City’s analyze various factors contributing to a lack of community and neighborhood identity such as:

  • The number of limited access highways that divide Cities;
  • Natural barriers, such as lakes.;
  • The division of Cities that involve different types of independent school districts that serve other cities; and
  • The absence of a post office and different zip codes within a City.

C. LAND USE PLAN

The purpose of a land use plan interrelates with all elements, goals and objectives of the comprehensive plan. The purpose of the comprehensive plan is to designate the type, location and density of land uses in the City. This section describes the overall land use pattern and how it is related to the community’s future housing needs, environmental conditions and protection, surface water management and historic preservation. In doing this, the Cities consider the following areas:

  • Community goals and objectives;
  • Natural features;
  • Supportive elements, such as transportation, drainage systems and utilities;
  • Existing and future problems; and
  • Coordination with surrounding communities and metropolitan facilities.

A city is the only entity with an opportunity to coordinate overall development in the City. In reviewing the comprehensive plan it is clear that the City’s overall land use goals are designated such as:

  • Provide for orderly development;
  • Protect and strengthen neighborhoods;
  • Promote economic development that will expand the property tax base, increase jobs and provide desirable services;
  • Preserve significant natural features where practical;
  • Minimize the land planned for streets;
  • Minimize conflicts between land uses;
  • Prevent premature use, overcrowding or overuse of land, especially when supportive services and facilities, such as utilities, drainage systems or streets, are not available;
  • Provide a wide variety of housing types;
  • Provide safe and attractive neighborhoods and commercial areas;
  • Integrate developments with open space areas, community facilities and significant natural features; and
  • Maintain and upgrade environmental quality and, where needed, reclassify land uses.

It is also very important that a city review the overall statements concerning general development policies. The general development policies are intended to implement the land use goals. Such development policies are as follows:

  • The city will not approve new development without providing for adequate facilities and services, such as streets, utilities, drainage, parks and open space;
  • Safe and adequate access will be provided for all properties;
  • Transitions between distinctly differing types of land uses should not create a negative economic, social or physical impact on adjoining developments;
  • Whenever possible, changes in types of land use should occur so that similar uses front on the same street or at borders of areas separated by major man-made or natural barriers;
  • Most cities require all development to meet state and federal laws, including Minnesota Pollution Control Agency (MPCA) regulations;
  • The recent trend is for cities to have developers do sound tests to verify compliance with MPCA regulations;
  • Grading and site plans should preserve as many natural features as practical;
  • Cities require drainage and erosion control plans with new developments. Such plans shall not increase the rate of runoff and shall prevent erosion;
  • Cities will use the National Urban Runoff Program (NURP) standards for the design of new storm water ponds;
  • Cities will use the MPCA’s urban best management practices when reviewing any proposed development to reduce nonpoint source pollution in storm water;
  • Cities have a tendency not to remove land from the tax rolls unless it is in the public interest;
  • Cities support the improvement, replacement or redevelopment of substandard or incompatible development;
  • Cities coordinate its planning with neighboring communities;
  • Cities apply its development policies and ordinances consistently and uniformly;
  • Cities will coordinate land use changes with the character of each neighborhood;
  • Cities regulate development near the alteration of natural drainage systems to manage storm water runoff;
  • Cities also review the County’s Soil Surveys to identify areas with soils that are not suitable for building sites;
  • It is common for a city to require the developer to furnish evidence from a registered soil engineer that areas with problems can be developed as proposed;
  • Cities also coordinate with the Watershed organizations in the review of development requests;
  • Cities work with MnDOT to coordinate development reviews, plats, site plans, and environmental documents, traffic studies, capital improvements for proposals along state and interstate highways.

Within the land use plan there are usually sections involving commercial and industrial development polices.

D. RESIDENTIAL DEVELOPMENT POLICIES

The cities usually have residential development policies which consist as follows:

  • Plan residential neighborhoods with schools and parks as the hub. Natural or man-made physical barriers should not traverse, but set the boundaries of the neighborhood;
  • Include a variety of housing types for all types of residents, regardless of age, ethnic, racial, cultural or socioeconomic background. Cities believe that a diversity of housing types should include apartments, townhouses, manufactures homes, single-family housing, public-assisted housing and for a workforce housing including rental and owner-occupied housing;
  • Cities attempt to disperse affordable housing developments throughout the city, rather than concentrating them in one area or neighborhood. Such housing should be near bus lines or have access to other public transportation in the philosophy of the city;
  • Cities usually support innovative subdivision and housing design;
  • Cities also support use of planned unit developments for sites with development challenges to allow for creative design solutions;
  • Cities protect neighborhoods from activities that produce excessive noise, dirt, odors or which generate heavy traffic;
  • Other goals and policies to protect neighborhoods from encroachment or intrusion of incompatible land uses by adequate buffering and separation.

Finally, cities usually have commercial and industrial development policies which include some of the following:

    • Group compatible businesses in suitable areas;
    • Provide attractive surroundings in which to shop and work;
    • Require adequate off-street parking and loading facilities;
    • Promote the joint use of parking areas, drives and trash containers;
    • Avoid disruption of adjacent or nearby residential areas;
    • Sometimes cities urge planned unit developments wherever practical. Maintaining orderly transitions between commercial and residential areas;
    • Require commercial and industrial developers to make all necessary improvements to ensure compatibility with surrounding residential areas;
    • Require adequate screening or buffering of new or expanded commercial areas from any adjacent existing or planned residential development.
    • Plan land uses and streets to route non-residential traffic around residential neighborhoods.
    • Restrict commercial and industrial development that would result in traffic volumes which are beyond the capacity of the road systems or generate excessive noise or pollution as defined by state standards.
  • The community is customarily divided and designated for the following uses:
  1. Residential (single family or multifamily use)
  2. Business (office space or commercial)
  3. Industrial (light, medium or heavy)
  4. Open space (parks)
  • Regional Blueprint: adopted by Metropolitan Council in 1994, replaces the Metropolitan Development Framework.
    • Purpose: promote economic growth, guide the growth, increase economic opportunity, preserve natural environment, promote efficient and effective delivery of public services.
  • Minn. Stat. 473.865 states:
    • Local government may not adopt official control in conflict with its comprehensive plan or permit conflict with the Metropolitan Systems plan (Minn. Stat. §473.865, subd. 2).
    • If the comprehensive plan is amended and an official control now conflicts with it, the official control must be amended within nine (9) months so as to not conflict with the amended comprehensive plan (Minn. Stat. §473.865, subd. 3).
  • Local governments may not “adopt any fiscal device or official control which is in conflict with [the] comprehensive plan, including amendments” (Minn. Stat. §473.858, subd. 1).
  • A city or town must have a comprehensive plan in place before passing zoning regulations. Minn. Stat. §462.357, subd. 2.
  • Zoning ordinances must be brought into conformance with the comprehensive plan (Minn. Stat. §462.357, subd. 2).
  • The Land Planning Act requires the Metropolitan Council (“Met Council”) to determine:
    • conformity with metropolitan system plans;
    • consistency with other adopted plans of the Council; and
    • compatibility with each other

V. Amending a Comprehensive Plan

  • Amending a city’s comprehensive plan presents a challenge because of the voting requirement.
  • In order to change the comprehensive use plan a “two-thirds majority of all members of the governing body is needed”.
  • Abstentions do not reduce the number of required votes. Minn. Stat. 462.355, subd. 3. See Ram Development Company v. Shaw, 211 N.W.2d 110, 309 Minn. 139,where the Supreme Court of Minnesota held that a two-third majority of the voting board members was invalid because the amendment had not been passed by two-thirds of all board members.
  • As a result, the following numbers apply:
    • Two-thirds equals 66 percent. Three of five board members equals 66 percent (insufficient). Four of five members equal 80 percent. If one board members abstains or is absent then the members play out as follows: 4/4=80% (the other 20 percent being accounted for by the absent board member. If more than one board member is not voting it is impossible for the board to pass the amendment. It is very important that prior to requesting an amendment of a comprehensive plan that there is an indication that the votes are there.

VI. Zoning Ordinances

  • Zoning ordinances are the city’s implementation of the vision and policies of the comprehensive plan.
  • Ordinances are enacted for the following purposes:
    • To promote the health, safety, morals and general welfare of the city’s residents by:
      • Lessening congestion in the streets
      • Securing safety from fire, panic and other dangers
      • Providing adequate light and air
      • Preventing the overcrowding of land and avoiding undue concentration of population
      • Facilitating adequate transportation, water, sewerage, schools, parks and other public requirements
      • Conserving the value of properties and encouraging the most appropriate use of land.
  • Zoning imposes restrictions on the use of land, including building, height, bulk, development and uses of property, set back requirements and density of population.
  • Decisions to enact or amend zoning ordinances are considered legislative decisions. The local decision maker is creating new policy as opposed to applying facts to existing public policy already expressed in an ordinance. Honn v. City of Coon Rapids, 313 N.W.2d 409, 417 (Minn. 1981).

VII. Adopting Zoning Ordinances

  1. Procedure: The procedure for the adoption or amendment of a zoning ordinance is set forth in Minn. Stat. 462.357 subd 3, 4 and 5.
  2. Requirements:
  • A simple majority of votes (Minn. Stat. 462.357 subd 2).
    • Adoption/amendment of a zoning ordinance which changes all or part of the existing classification of a zoning district from residential to either commercial or industrial requires a two-thirds majority vote (Minn. Stat. §462.357 subd. 2(b)).
  • Public hearing by the planning agency or governing body
  • Publication of time, place and purpose of meeting at least 10 days prior to hearing; mailing notice to adjoining landowners at least 10 days prior to hearing is required in some cases.
  • Within the Eight-County Metropolitan Area: Metropolitan Council may become involved if it is necessary to amend a comprehensive guide plan in order to effectuate a zoning or rezoning (Minn. Stat. 473.165, Minn. Stat. §473.173).

VIII. Rezoning

  • The landowner must apply for rezoning if he/she is using the property for purposes not allowed by the existing zoning.
  • The applicant has the burden of proving the need for rezoning.
  • Governed by Minn. Stat. 462.357.
  • A municipality must have a rational basis on which to base its denial of an application for rezoning. City of Mounds View v. Johnson, 377 N.W.2d 476 (Minn. Ct. App. 1985).

IX. Zoning Board of Adjustments and Appeals

  1. Powers:
  • Hears and decides appeals where there is an alleged error in an order, requirement, decision or determination by an administrative officer.
  • Hears requests for variances.
  • See Minn. Stat. 462.357 subd 6.

X. Judicial Review of Zoning

  • Municipal zoning challenges must be brought in district court. In the Matter of Merit, 537 N.W.2d 289 (Minn. Ct. App. 1995); White Bear Rod & Gun Club v. City of Hugo, 388 N.W.2d 739 (Minn. 1986).
  • County zoning challenges can be brought by writ of certiorari to Court of Appeals or to district court by a writ of mandamus.
  • Local zoning decisions should not be challenged in federal court unless challenging constitutionality of decision. In Bituminous Materials, Inc. v. Rice County, Minn., 126 F.3d 1068, 1071 (8th Cir. 1987) the court stated that federal courts are not zoning boards of appeals.
  • The question is always, “was the action reasonable?” Honn v City of Coon Rapids, supra.
  • Rational basis test applies. Beck v. Beck, 1997 WL 615731 at *2 (Minn. Ct. App.) review denied (Minn. Dec. 8, 1997).
  • A record containing a legally sufficient reason for denial must exist. C.R. Investments, Inc. v. City of Shoreview, 304 N.W.2d 320, 328 (Minn. 1981).
  • The challenger bears the burden of showing that record is legally insufficient. Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757, 767 (Minn. 1982).
  • The burden shifts to the city or township and the decision is presumed arbitrary when no basis for a decision is recorded contemporaneously to the decision. Kehr v. City of Roseville, 426 N.W.2d 233, 236 (Minn. Ct. App. 1988).
  • Jake’s LTD., Inc. v. City of Coates, 284 F.3d 884 (8th Cir. 2002) (city need not conduct its own studies to demonstrate that a proposed ordinance will serve to reduce adverse secondary effects so long as evidence city relies upon is reasonably believed to be relevant).

XI. Conditional Use

  • Types of Uses in a Zone:
  1. Permitted uses (uses allowed in a particular district)
  2. Conditional uses – (one which requires a permit from the municipality before engaging in the use

A. Conditional Use Permits (CUP)

  • While expressly authorized by a zoning ordinance, conditional uses require the zoning authority’s consent because of inherent hazards or location problems. SuperAmerica Group v. City of Little Canada, 539 N.W.2d 264 (Minn. Ct. App. 1995).
    • A city may approve, amend or deny a CUP based on the following standards:
      • The use would be located, designed and maintained in conformity with the city’s comprehensive plan
      • The use would not change the existing or planned character of the surrounding area
      • The use would not depreciate property values.
      • The use would not involve any activity, materials or equipment that would be dangerous, hazardous, detrimental or disturbing or cause a nuisance to any person or property
      • The use would be served by adequate public facilities and services (streets, police and fire protection, drainage, water, sewer, schools and parks)
      • The use would generate only minimal traffic and would not create unsafe access on existing or proposed streets
      • The use would maximize preservation of the site’s natural and scenic features and cause minimal adverse environmental effects.
      • The applicant has the burden of proving that the use meets all of the standards required for CUP approval.

XII. Standard of Review for Denial

  • CUP is a government entitlement or benefit and is protected by procedural due process and equal protection guarantees.
  • Court review is limited to the legal sufficiency and the factual basis of the city council’s stated reasons for denying a permit. Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. Ct. App. 1997)
  • CUP decisions are quasi-judicial in nature and therefore require a slightly higher scrutiny than other zoning decisions. CUP decisions will be upheld unless they are found to be arbitrary and capricious.
  • A denial without any contemporaneous findings constitutes a prima facie case of arbitrariness. Communications Props., Inc. v. County of Steele, 506 N.W.2d 670, 672 (Minn. Ct. App. 1993); See also Zylka v. City of Crystal, 283 Minn. 192, 198, 167 N.W.2d 45, 50 (1969).
  • A city may deny a permit if it has at least one legally sufficient reason. See Trisko v. City of Waite Park, 352 (holding that a city’s denial is not arbitrary when one of the reasons for denial is legally sufficient).
  • A reason will not be considered legally “sufficient” if founded solely on vague reasons.
    • See generally Trisko v. City of Waite Park, 353 (a municipality must base the denial of a conditional use permit on something more concrete than neighborhood opposition and a concern for public safety);
    • BECA of Alexandria v. County of Douglas, 607 N.W.2d 459 (Minn. Ct. App. 2000) (County board decision founded on unscientific concerns regarding the aquatic ecosystem is arbitrary and capricious);
    • City of Barnum v. County of Carlton, 386 N.W.2d 770, 776 (Minn. Ct. App.), on remand, 394 N.W.2d 246 (Minn. Ct. App. 1986) (where none of the permit applicant’s opponents presented scientific, technical or statistical evidence to substantiate their concern, county has “no legally sufficient basis to deny a conditional use permit”).
  • A denial of a conditional use permit is arbitrary as a matter of law when a zoning ordinance dictates standards to be applied to determine whether or not to grant the permit and the applicant fully complies with the specified standards. Scott County Lumber, 417 N.W.2d at 727; accord, Hurle v. Sherburne County, 594 N.W.2d 246, 250 (Minn. Ct. App. 1999).
  • A denial of a conditional use permit pertaining to a use that is expressly authorized by a zoning ordinance can only be made for public health, safety, or general welfare reasons. Scott County Lumber Co. v. city of Shakopee, 417 N.W.2d 721, 726-27 (Minn. Ct. App. 1988).
  • Agency is not “bound to rigid adherence to precedent” however, the “agency must conform to its prior norms and decisions or explain the reasons for its departure from such precedent.” Peoples Natural Gas Co. v. Minn. Pub. Utils. Comm’n, 342 N.W.2d 348, 352-53 (Minn. Ct. App. 1983).
  • But see, State v. Vadnais Heights, 295 Minn. 17, 202 N.W.2d 657 (1972) (a discrimination claim may arise where a conditional use permit is granted in one instance and not in another under similar facts).

XIII. Conditions

  1. When granting a CUP, a city council may elect to impose such conditions and guarantees it deems necessary, and as supported by records of a proceeding, to protect adjacent property owners and public interests, and yet achieve the goals and objectives of the comprehensive plan.
  2. These conditions and guarantees can include, but are not limited to the following:
  1. Controlling the number, area, bulk, height, illumination and location of such uses.
  2. Regulating access to the property, with particular reference to vehicle and pedestrian safety and convenience, traffic control and emergency vehicle access.
  3. Regulating off-street parking and loading areas, including the number and width of parking spaces.
  4. The location and design of utilities, including drainage.
  5. Berming, fencing, screening and landscaping, including underground sprinklers.
  6. Compatibility of appearance with surrounding land uses.
  7. Preserving of the site’s natural, historic and scenic features in the development design.
  8. Limiting the number, size, location or lighting of signage, notwithstanding the provisions of any sign ordinance.
  9. The location, dimensions and upkeep of open space.
  10. Increasing required lot size, yard dimensions or setback requirements.
  11. Compliance with any plans presented.
  12. A time limit or review of the permit.
  13. A written agreement, cash escrow, letter of credit or other guarantee that ensure that the project will be built as approved.
  14. Restrictive covenants.
  15. Control of the interior and exterior components of a building, provided that such condition does not conflict with the building code. Such components may include, but not be limited to, the finished exterior materials and installation of elevators.
  16. Controlling potential noise generators.

XIV. Non-Conforming Uses

After a zoning ordinance, any property, structure, or land use that is not in compliance with the new ordinance is non-conforming use. Because a non-conforming use is contrary to the vision of planner and city. In the planner’s perfect world, the non-conforming use would simply be eliminated. However, the use is sometimes allowed to remain as long as it lawfully existed before the ordinance change. In such cases, the use is “grandfathered” under the new ordinance or amendment.

A. Zoning Ordinances Addressing Nonconforming Uses

  • It is important to review a city’s ordinance involving non-conforming uses.. Acting in a legislative capacity, city councils and county commissioners have broad discretion to decide how to deal with pre-existing nonconforming uses. See State by Rochester Ass’n of Neighborhoods v. City of Rochester, 268 N.W.2d 885, 888 (Minn. 1978).
  • Generally, nonconforming uses will be used in one of the following manners:
  1. The uses may be permitted to remain as lawful nonconforming uses.
  2. The uses may be eliminated immediately through the exercise of the municipalities’ powers of eminent domain.
  3. The uses may be required to terminate after a prescribed period of time sufficient to allow the property owner an opportunity to recapture his or her investment in the use.

B. Expansion of Nonconforming Use

As a general policy, nonconforming uses are allowed only so long as they are not enlarged, expanded, modified or resumed after being discontinued for a certain period of time.

  • Some ordinances allow for minor expansion or enlargement. The permissible enlargement is sometimes related to a percentage of foundation or floor area, or a percentage of market or assessed value.
  • The rationale for prohibiting expansion is that the inevitable expansion, sale and destruction of property will eventually result in the disappearance of nonconforming land use. County of Freeborn v. Claussen, 203 N.W.2d 323 (1972).
  • Problems relating to the expansion or enlargement of nonconforming use area typically arise in four situations:
  1. When the property undergoes an increase in floor space.
  2. When the property undergoes an increase in the size of a lot taken for nonconforming use.
  3. When a change in business methods or facilities results in an increase of activity on the nonconforming property.
  4. When there is an “intensification” of the volume of business on nonconforming property.
  • The first two activities will generally be more strictly prohibited because they are activities that enlarge or expand the nonconforming use.
  • The second two are harder to measure. Since the intensification of the volume of business connected with nonconforming uses is separate from the use itself, it is more likely to be allowed.

C. Change of Use

  • Under most ordinances, a change of use will destroy the ordinance exception for nonconforming property. Determining change of use requires first defining the current use of the property.
  • There are two categories of nonconforming use property: specific and broad. An example of specific nonconforming use is a neighborhood grocery store in a residential area. An example of a broad category is a retail/commercial property in a residential area.
  • The characterization’s level of specificity will determine how property development occurs. If, for example, a grocery store has a protected nonconforming use that is broadly defined (retail/commerce), then the store can add a carry-out food section to its corner store operation or even turn into a dry cleaning business. If the nonconforming use is specifically defined (mom and pop corner store), then any further developments would be essentially prohibited. See generally, Wilson v. Edgar, 22 P. 623 (Cal. App. 1 Dist. 1923); Wechter v. Board of Appeals of Chicago, 119 N.E.2d 747 (Ill. 1954).
  • Courts will almost always define nonconforming uses specifically. This is because of judicial recognition that the ultimate purpose of zoning is to eliminate nonconforming uses. See Wilson at 624.
  • The trend for local zoning ordinances that restrict nonconforming uses is to treat the uses in one of three ways:

    1. Prohibit any change in nonconforming uses.
    2. Permit a change to a “similar” nonconforming use.
    3. Permit a change to a less intense nonconforming use.

  • Since ordinances often lack specific criteria for how nonconforming property change, courts will look at factors including the degree of change from the current use and the probable impact on the surrounding neighborhood when the change is made.
  • Ordinances will vary by jurisdiction. For example, Orono prohibits any change from nonconforming use, while Inver Grove Heights only allows changes that are similar or more restrictive than the nonconforming use.

D. Abandonment or Discontinuance

  • If a non-conforming use is abandoned, the courts have ruled that the future use of property must conform to current zoning regulations.
  • Abandonment is interpreted as:
  1. Voluntary demolition or destruction of non-conforming building;
  2. Voluntary change to a conforming use;
  3. Voluntary change to/from one non-conforming use to a use where zoning ordinances allow permitted changes, or
  4. Destruction by fire or other causes where greater than 50% of the structure, is destroyed.
  • Problem: The definition of abandon is subject to interpretation.
  • County of Isanti v. Peterson, 469 N.W. 2d 467 (Minn. Ct. App. 1991) set the parameters for abandonment.
  1. Intent of owner, based upon the owner’s actions, and
  2. Failure of the owner to claim a right to a non-conforming use (usually supported by his or her acts).
  • Repairs, Alterations, Restorations: Within municipalities, there is a philosophy to allow some improvement and alteration of non-conforming buildings. The regulations regarding repairs and alterations should be carefully reviewed. Some of these regulations use percentage values to limit the expenditure. The limitation is tied into the assessed value, or sometimes, market value.
  • Change of ownership of land does not constitute an extension of a nonconforming use. Subsequent use will usually be required to conform to the zoning ordinance. Hawkins v. Talbot, 248 Minn. 549, 80 N.W.2d 863 (1957).
  • Minnesota law provides that a municipality may impose reasonable regulations to prevent nuisances and protect public safety, health, and welfare.
  • Except for ordinances directed at “adult-only businesses,” municipalities may not use amortization to destroy a nonconforming use. See Minn. Stat. 462.357 Subd. 1-1(c)

XV. Variances

A. Standard

Variances are granted when the strict enforcement of the literal provisions of the ordinance would cause undue hardship because of circumstances unique to this particular property. (Minn. Stat. 462.357 subd. 6(2))

  • Undue hardship:
  1. The property cannot be put to a reasonable use if used under the conditions required by the city;
  2. The hardship is due to circumstances unique to the property, not by a situation created by the landowner, and
  3. The variance will not alter the essential character of the locality.

See VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503 (1983). VanLandschoot analyzes whether there is a rational basis for the city’s decision based on:

  • Whether reasonable use be made of the property without the variance?;
    • The current economic value of the property, and
    • General health, safety and welfare of the community.
    • Economic hardship alone isn’t enough.
  • The hardship requirement does not mean that a property owner must show the land cannot be put to any reasonable use without the variance. Rather, the undue hardship standard requires a showing that the property owner would like to use their property in a reasonable manner that is prohibited by ordinance. Nolan v. City of Eden Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000)

Possible issue : variances v. the need for life-cycle housing.

B. Timing of Variance Approvals

  • An applicant to a variance is not entitled to a variance merely because similar variances were granted in the past. In re Variance Request of Johnson, 404 N.W.2d 298 (Minn. App. 1987).
  • However, zoning variances must operate uniformly on those similarly situated.
  • If one property receives a variance while another similarly situated property is denied, it is a violation of state and federal equal protection clauses. Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn.1979).
  • A landowner is not similarly situated if enough time passes between variance applications. For example, in Castle Design & Dev. Co. v. City of Lake Elmo, 396 N.W.2d 578, 582 (Minn. App.1986), the Court found that two properties could be treated differently because their applications were filed three months apart.

C. Scope and Procedure of Review:

  • Like all zoning cases, the standard of review in variances cases is whether the city’s action is reasonable.
  • The granting board has authority to hear requests for variances to zoning ordinances, and may impose conditions to ensure compliance and protect the adjacent properties (Minn. Stat. 462.357 subd. 6(2)).
  • In addition to the hardship requirement, the board may only grant variances when doing so is consistent with the spirit and intent of the ordinance
  • Interpretation of zoning ordinance is a question of law.
  • Quasi-judicial decision – Whether facts show applicant met criteria.
  • The reasonableness of the city’s action is measured by the standards set out in the local ordinance, not by the standards contained in the statute providing that municipalities grant such permits. VanLandschoot at 509.
  • For purposes of scope and review, variances are treated the same as applications for special use permits. However, the standard for special use permits is lower.
  • In granting a variance, the city may attach conditions. However, the conditions must also be reasonable, and bear a relationship to the purpose of the variance.
  • No use variance may be granted if the use is prohibited in a zoning district. A city may grant use variances when a use is not prohibited in the zoning district, but the use is limited by another portion of the zoning ordinance.

D. Counties and Plats:

  • Counties are granted land use control by Minn. Stat. Chapter 394 for the purpose of promoting the health, safety, morals, and general welfare of the community
  • Plats are defined in Minn. Stat. §462.342, Subd. 13:

    “Plat” means the drawing or map of a subdivision prepared for filing of record pursuant to Chapter 505 and containing all elements and requirements set forth in applicable local regulations adopted pursuant to Section 462.358 and Chapter 505.

  • Plats are required if the policy applies, Minn. Stat. §462.358, Subd. 3(a):

    Minn. Stat. §462.38, Subd. 3(a) requires that all subdivisions which create five or more lots which are .5 acres or less in size be platted. Many subdivision ordinances require that all subdivisions be platted. The subdivision regulations may not conflict with Chapter 505 but “may address subjects similar and additional to those in that chapter.”

  • The platting process is controlled by Minn. Stat. Chapter 505.

E. Key Cases:

  • Myron v. City of Plymouth, 562 N.W.2d 21 (Minn. Ct. App. 1997): Knowledge of zoning ordinance prior to purchasing property does not make denial of variance request mandatory. Denial of a variance request is neither mandatory nor permissible on the ground of knowledge.
  • Sagstetter v. City of St. Paul, 529 N.W.2d 488 (Minn. Ct. App. 1995): The city requested a variance to build a domed softball field. Owners of apartment buildings next to the proposed site opposed the variance. The burden of showing that the city’s grant of a variance is unreasonable is on the party challenging the grant of the variance. Because zoning laws are a restriction on the use of private property, the burden of proof for proving arbitrary action by the City is lighter for landowners challenging the denial of a special use permit than for objectors challenging the approval of a permit.
  • Stotts v. Wright County, 478 N.W.2d 802 (Minn. Ct. App. 1991): Landowner was denied a variance for a boathouse. Appellate court affirmed. The county may remove a reconstructed non-conforming structure because the landowner does not acquire a vested right in a nearly completed non-conforming property.
  • Luger v. City of Burnsville, 295 N.W.2d 609 (Minn. 1980): Where no statute or ordinance required neighborhood consent for a zoning variance, the city council may not require the consent of every abutting landowner. Since the city council voted unanimously in favor of the variance, the owner was entitled to a writ compelling the city to grant the variance.
  • VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503 (Minn. 1983): City’s denial of a variance was justified because granting the variance would have created a public burden in the form of increased tort liability, public safety risk, and public access restrictions. The landowner still had use for the property, and the undue hardship was due to owning a large piece of land.

XVI. Regulatory/Temporary Takings

  • Takings which occur as the result of a city or township regulation.
  • Constitutional Guarantee
    • “Private property shall not be taken, destroyed or damaged…without compensation.” Minn. Const. Art. I § 13; U.S. Const. Amend V (“nor shall private property be taken for public use, without just compensation”).
    • Compensation is required whenever government temporarily deprives an owner of all economically viable use of her property. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S. Ct. 1465 (2002).
    • After Tahoe there is no bright line rule for regulatory takings cases- they are handled on a case-by-case basis. See generally Tahoe, 122 S. Ct. at 1470.
    • Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646 (1978) adopted a three prong guideline to determine if a taking has occurred:
  1. What was the economic impact of the regulation?
  2. To what extent does the regulation interfere with legitimate investment-backed?
  3. What is the character of the regulation?
  • A taking occurs if a regulation deprives a property owner of “all economically viable use” of the property unless the proscribed use in not part of the “bundle of rights” inherent in the ownership of the property. Lucas v. South Carolina Coastal Commission, 505 U.S. 1003, 112 S. Ct. 2886 (1992),
  • Lucas-type cases will be extremely rare and perhaps non-existent. See generally Tahoe, 122 S. Ct. at 1470-72.

XVII. Subdivisions

  • Not all land divisions are subdivisions – if the land split is truly a subdivision the process if highly regulated
  1. Minn. Stat. 462.352:
  • Defines a subdivision as a separation of land under single ownership into two or more parcels where creation of leasehold interest necessitates streets, roads, or alleys for residential, commercial, industrial or other use, except:
  1. where all parcels will be 20 acres or larger and 500 feet in width;
  2. cemetery lots, or
  3. when a result of court orders or adjustment of a lot line by relocation of a common boundary.
  • Cities and towns cannot expand on this definition (Atty Gen. Op.59A-322 (August 18, 1995)).
  • Minn. Stat. §462.358 requires a subdivision application to be preliminarily approved or disapproved within 120 days unless extended.
  • Standard of Review: The standard of review for the denial of a subdivision permit is similar to a conditional use permit. The court determines whether the actions of the city are reasonable and have a rational basis.
  • If the proceedings were fair and the record full and complete, the case is tried based upon the record before the city at the time of its decision (Swanson v. City of Bloomington, 421 N.W.2d 307 (1988).
  • The parties must be aware that they present all of the issues to the city in order to preserve the right to later contest them.
  • County subdivision decisions bypass the District Court and are appealed directly to the Court of Appeals
  • Where a city proceeds under an ordinance, and said ordinance does not provide for district court review of the city’s decision, the court of appeals has exclusive certiorari jurisdiction over a review of the city’s decision. City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (2000).
    • In Meldahl, the City of Minneapolis, pursuant to one of its ordinances, ordered the demolition of Meldahl’s building. Meldahl appealed the City’s decision to the District Court. The District Court held, and the Court of Appeals affirmed, that “unless there is statutory authority for a different proceeding, a party may obtain review of a quasi-judicial decision by an executive body that does not have statewide jurisdiction only by writ of certiorari, and in those circumstances the court of appeals has exclusive certiorari jurisdiction.” Id.
  • State and county approval is usually required for lands abutting any existing or proposed trunk highway, county road or highway, or county state-aid highway.

XVIII. Sixty-day Rule.

  • The legislature has established time limits, through Minn. Stat. 15.99 for cities to act on zoning requests.
  • Time begins to run upon completion of the application.
  • City’s decision must be made within 60 days upon acceptance of application.
  • If application is incomplete, the city must send notification as to what information is missing within ten (10) days of receipt of application.
  • The city may extend an additional sixty (60) days by written notice with reason.
  • The 60 days may be extended if an outside agency, government institute, or state, federal or court process delays action within the time limit. The 60 days is extended after the last process.
  • The 60 day rule is mandatory (Manco of Fairmont, Inc. v. Town Board of Rock Dell Township, 583 N.W.2d 293, (Minn. Ct. App.) (1998)).
  • The result of a failure to substantially comply with Section 15.99 is automatic approval of the application.
  • Reasons for denying a request must be in writing (Demolition Landfill Services v. City of Duluth, 609 N.W.2d 278 (Minn. Ct. App. 2000); Gun Lake Association, et al v.County of Aitkin, 612 N.W.2d 177 (Minn. Ct. App. 2000).
  • An implied waiver by an applicant is not sufficient (Northern States Power Co. v. City of Mendota Heights, 646 N.W.2d 919 (Minn. App. 2002).
  • Notice of 60-day extension must be sent to the applicant after the application is submitted. American Tower v. City of Grant, C1-00-786 (Dec. 26 2000)
  • Infrastructure
    • Streets, storm sewer, water, fire station, etc, must be in place or available to serve a new development.
    • If not in place/available, subdivision approval may be denied (Minn. Stat. 462.358, see also Larson v. County of Washington, 387 N.W.2d 902 (Minn. App. 1986).
    • Ordinances frequently label underserved areas as “premature” and deny plat application if the area lacks adequate drainage, water supply, roads, water disposal or public service capacity.
    • City may condition subdivision approval upon developer first constructing the public improvements (Development Agreement, see below) or filing letter of credit, cash deposit or bond (Assessment Agreement) to guarantee the improvements will be constructed (Minn. Stat. 462.358, subd. 2a).
    • City may require developer to oversize pipes or other infrastructure to benefit property outside of the development. The city may not go through the public bidding and bonding process, but may rather reimburse the developer (Minn. Stat. 462.358, subd. 2a).

XIX. Development Contract: City may condition approval of subdivision on the developer agreeing to a development contract.

  • The terms must be “reasonably related to the provisions of the [subdivision] regulations” (Minn. Stat. 462.358, subd. 2a).
  • Developer is usually asked to waive its right to appeal the special assessments levied. An appeal is a statutory right under Minn. Stat. 429.081, but a waiver of a statutory right is lawful if voluntary and knowing. This is a factual determination. See Ruzik v. City of Eden Prairie, 479 N.W.2d 417 (Minn. Ct. App. 1991).
    • Following preliminary subdivision approval, the city may not approve amendments to its official controls, comprehensive plan, zoning ordinance or subdivision ordinance which affect the use or requirements of the approved subdivision for one year (Minn. Stat. 462.358, subd 3c).
  • Following final subdivision approval, the city may not approve such amendments for two years (Minn. Stat. 462.358, subd. 3c).
  • City and developer can agree that previous regulations will apply for a specified period. This assures the developer that the city will not change the rules when the developer is doing a long-term project. The city essentially contracts away its police power.
    • Performance conditions may be implemented during this period so that the stay is subject to their completion.
  • Developer’s Agreements cannot modify building code provisions or limit assessments. House File No. 1310, Laws 2001.
  • The local government may see the approval process as a chance to resolve other issues with the property, but the subdivision approval must be confined to the subdivision issues (Enright v. City of Bloomington, 203 NW.2d 396 (Minn.1976).
  • Dedications:
  • Street and utility dedication requirements: must satisfy Constitutional requirement that dedication have an “essential nexus” with the need created by the subdivision and be “roughly proportionate” with the created need (Dolan v. City of Tigard, 512 U.S. 374 (1994); see also Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987); see also Kottschade v. City of Rochester, 537 N.W.2d 301 (Minn. App. 1995).
  • Park dedication: the standards/requirements are less clear than streets and utilities. Almost all cities impose park dedication requirements on residential development, and some also require park dedications for commercial and industrial development.
  • Challenges: Any challenges must be raised before final plat approval and registration (Crystal Green v. City of Crystal, 421 N.W.2d 393 (Minn. Ct. App. 1988)).

XX. Moratoriums.

  • There is no absolute right to a permit to use land in the manner contemplated by existing zoning ordinances.
    • Minn. Stat. 462.355, subd 4:
      If a city

      • is conducting studies;
      • has authorized a study to be conducted;
      • has scheduled a hearing for the purpose of considering adoption or amendments of a comprehensive plan or official controls, or
      • annexes a new territory for which plans or controls have not been adopted,

        the city may adopt an interim ordinance applicable to all or part of its jurisdiction in order to protect the planning process and health, safety and welfare of its citizens.

      • The interim ordinance may not be used to delay or present a single project (Medical Services, Inc. v. City of Savage, 487 N.W.2d 263 (1992).
    • The interim ordinance may regulate, restrict or prohibit any use, development, or subdivision for no longer than one year from the date it becomes effective.
    • The interim ordinance may be extended for such additional periods as the city may deem appropriate, but not exceeding an additional period of eighteen (18) months.
    • The interim ordinance may not halt, delay, or impede a subdivision which was given preliminary approval prior to the date the interim ordinance became effective.
    • No published notice is required to adopt the interim ordinance (Duncanson v. Board of Supervisors of Danville Township, 551 N.W.2d 248 (1996).
    • Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 258 (1992): The city’s interim ordinance denying a property owner all economically viable use of the property for two years was not a categorical taking of property.

XXI. Private Restrictions on Land Use

  • Restrictive covenants are valid so long as they are more restrictive than the applicable zoning ordinances. Strauss v. Ginzberg, 218 Minn. 57, 15 N.W.2d 130 (Minn. 1944) (zoning ordinances, if less stringent, do not diminish the legal effect of private restrictions).
  • These restrictions are private contracts of which the government has no right to interfere.
  • “Whenever land is developed under a general plan, reasonably restrictive covenants which appear in deeds to all lots sold are enforceable alike by the vendor and by the vendees and by their successors in title. Velie v. Richardson, 126 Minn. 334, 148 NW 286.
  • Covenants imposing restrictions upon the use of property will be given full force and effect intended by the parties who created them. Klapproth v. Grininger, 162 Minn. 488, 490, 203 N.W. 418, 419.

XXII. Common Issues:

A. Drainage

  • Adequate drainage, run-off ponds (self-contained or otherwise)

B. Phasing and Adequate Infrastructure

  • Capacity of regional/metropolitan facilities
  • Access rights, off-site improvements

C. Neighborhood Associations (active or inactive)

D. Master Plan

  • Vision 20/20
  • Pro-development v. no development

E. Landscaping

  • Tree preservation

F. Design Standards

  • Lot sizes
  • Setbacks, including power lines
  • Covenants
  • Park dedications
  • Conservation, wetlands

G. Life Cycle Housing (f/k/a Affordable Housing)

  • Authority of municipality includes promotion of “availability of housing affordable to persons and family of all income levels” (Minn. 462.358, subd. 1(a)).
  • Workforce Housing

H. Attorney Fees

  • City may pass through to property owner, but must be contained in the ordinance

XXIII. Tips When Working With Cities on Development Issues:

  • Contact the City Planner and/or Associate City Planner
  • Review local ordinances
  • Review the area demographics
  • Review any and all wetland areas on or near the property