(A) Board of Appeals and Adjustments hearings.
(1) Appeals to the Board of Appeals and Adjustments may be taken by any affected person upon compliance with any reasonable conditions imposed by this chapter. The Board of Appeals and Adjustments has the following powers with respect to this chapter:
(a) To hear and decide appeals where it is alleged that there is an error in any order, requirement decision or determination made by an administrative officer in the enforcement of this chapter; and
(b) To hear requests for variances from the literal provisions of the ordinances in instances where their strict enforcement would cause practical difficulties because of circumstances unique to the individual property under consideration and to grant variances only when they are in harmony with the general purposes and intent of the ordinance and when the terms of the variance are consistent with the Comprehensive Plan. Practical difficulties, as used in connection with the granting of a variance, includes a three-factor test, all three of which must be met in order for a variance to be granted.
1. The property owner proposes to use the property in a reasonable manner not permitted by this chapter.
2. The plight of the landowners is due to circumstances unique to the property not created by the landowner.
3. The variance, if granted, will not alter the essential character of the locality.
(2) Economic considerations alone shall not constitute practical difficulties if reasonable use for the property exists under the terms of the ordinance. Practical difficulties also includes, but is not limited to, inadequate access to direct sunlight for solar energy systems.
(3) The Board of Adjustments and Appeals may not permit as a variance any use that is not permitted under the provisions for property in the zone where the affected person’s land is located. Variances shall be granted for earth sheltered construction as defined in M.S. § 216C.06, subdivision 14, as it may be amended from time to time, when in harmony with these provisions.
(4) The Board may impose conditions in the granting of variances to ensure compliance and to protect adjacent properties. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance.
(B) Composition. The City Council shall serve as the Board of Adjustments and Appeals. Any question of whether a particular Board member should be disqualified from voting upon an issue shall be determined by a majority vote of all members, except the member who is being challenged.
(C) Appeals. An appeal from any order, requirement, decision or determination of any administrative official may be initiated by any person affected thereby, or by any officer, department, board or bureau of the city, county or state within 30 days from the date of any order, requirement, decision or determination by filing with the Zoning Administrator a written notice of appeal.
(1) The notice of appeal shall state:
(a) The particular order, requirement, decision or determination from which the appeal is taken;
(b) The name and address of the appellant;
(c) The grounds for the appeal; and
(d) The relief requested by the appellant.
(2) An appeal stays all proceedings in furtherance of the action appealed from unless the Board of Adjustment and Appeals, to whom the appeal is taken certifies that by reason of the facts stated in the certificate, a stay would cause imminent peril to life or property.
(3) The Board of Adjustment and Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and to that extent shall have all the powers of the officer from whom the appeal was taken, and may direct the issuance of a permit.
(D) Variances.
(1) Application for a variance shall be filed with the Zoning Administrator. The application shall be accompanied by development plans for the proposed use showing the information as may be reasonably required by the Administrator, including but not limited to those items listed below. The plans shall contain sufficient information for the city to determine whether the proposed development will meet all applicable development standard:
(a) Name and mailing address of the applicant;
(b) The legal property description of the land involved in the request, including the street address, if any, of the property;
(c) The names and mailing addresses of the owners of the property and any other persons having a legal interest therein;
(d) Site plan drawn to scale, dimensions indicated, including proposed structure, house, existing accessory buildings, well, septic system (tank and drainfield), adjacent public streets, driveway, lot size and lot dimensions:
1. Distance between existing structures, proposed structures, well and septic system;
2. Setbacks of existing and proposed structures from lot lines, non-buildable easements, public street right-of-way line or centerline, shoreline, bluffline or crest of slope 18% or steeper; and
3. Possible location of any and all detached accessory buildings permitted by this chapter for the property for which the application is being made.
(e) Landscaping and screening plans including species and size of trees and shrubs proposed;
(f) Finished grading and drainage plans sufficient to drain the developed portion of the site and to retain as much run-off on the site as possible;
(g) Type of business or activity and proposed number of employees or occupants;
(h) Proposed floor plan and elevations of all buildings with the use indicated;
(i) Soil type and soil limitations for the intended use: A plan or statement indicating the soil conservation practice or practices to be used to overcome any soil limitation shall be made part of the application;
(j) A location map showing the parcel’s general location within the city;
(k) Proof of ownership of the property for which the application is submitted, consisting of an abstract of title or registered property certificate certified by a licensed abstractor, or a title opinion prepared by an attorney licensed to practice in the state, together with any unrecorded documents whereby the petitioners acquired legal or equitable ownership;
(l) An accurate list showing the names and mailing addresses of the record owners of all property located within 500 feet of the property owned by the applicant; and
(m) A complete description of the request for variance including a description of the unique conditions and practical difficulties that make a variance necessary, the sections of the city code from which a variance is requested and the reasons for the variance request.
(2) The Board of Adjustment and Appeals may impose conditions in the granting of a variance which the Board may reasonably determine to be necessary to protect the adjacent properties, preserve the public health, safety and welfare, and comply with the intent and purposes of this chapter and with the Comprehensive Plan. The Board of Adjustment and Appeals may also impose the conditions and requirements as are necessary to ensure compliance with the terms of the variance.
(E) Hearing procedure.
(1) The Zoning Administrator shall, upon the filing of a notice of appeal or an application for a variance, refer the matter to the Board of Adjustment and Appeals and the Planning Commission and establish a time for the hearing thereof by the Board and Commission no less than 15 days after the filing of the notice or application and no more than 45 days after the filing thereof. On variance applications, the Planning Commission shall hold at least one public hearing, affording an opportunity for all parties interested to be heard, and shall give no less than ten days’ nor more than 30 days’ notice of the time and place of the hearing, published in the designated legal newspaper for the city.
(2) The notice shall also contain a description of the land and the requested variance. At least ten days before the hearing, the Zoning Administrator shall mail an identical notice to the owner and to each of the property owners of record for property within 500 feet of the outside boundaries of the land in question. The Planning Commission shall review all requests for variances prior to final action by the Board; a recommendation may be made to the Board for approval, denial or approval with conditions deemed to be in the public interest. The Board of Adjustment and Appeals shall decide any appeal or any application for a variance and issue its order with respect thereto within 30 days from the date of the hearing thereon.
(F) Findings of the Board. The Board of Adjustments and Appeals shall make written findings in any case of an appeal or application for a variance and shall state therein the reasons for its decision.
(1) In addition to meeting the criteria set forth in § 153.026 of this code, the following criteria must be met before a variance may be granted.
(a) The variance, if granted, will not have a significant adverse effect on the public health, safety, welfare or environment.
(b) The granting of the variance requested will not confer on the applicant any special privilege that is denied by this chapter to owners of other land, structures or buildings in the same district.
(c) Exceptional or extraordinary circumstances apply to the property which does not apply generally to other properties in the same zoning district or vicinity, and result from lot size or shape, topography or other circumstances over which the owners of the property have had no control.
(d) The literal interpretation of the provisions of this chapter would deprive the applicant of the rights commonly enjoyed by other property in the same district under the terms of this chapter.
(e) The variance requested is the minimum variance that would alleviate the practical difficulty.
(2) The order issued by the Board of Adjustments and Appeals shall include the legal description of the land involved. Any order shall be filed with the Zoning Administrator who shall immediately mail a copy thereof, bearing the notation of the filing date, to the appellant or applicant.
(a) A certified copy of any order issued by the Board of Adjustments and Appeals acting upon any appeal from an order, requirement, decision or determination of an administrative officer or upon any application for a variance, shall be filed with the County Recorder.
(b) The filing shall be made by the Zoning Administrator or other agent designated by the Board as soon as is reasonably possible after the filing of the order with the Zoning Administrator.
(c) The cost of filing with the County Recorder shall be borne by the appellant or applicant.
(G) Finality of decision. All decisions of the Board of Adjustment and Appeals acting upon an appeal from an order, requirement, decision or determination by an administrative officer or upon an application for a variance shall be final except that any aggrieved person may have any decision or order of the Board reviewed by an appropriate remedy in district court as provided by law.
(H) Time limit for implementing a variance. A variance must be implemented within one year from the date the variance was approved. “Implementing a variance” means that a grading permit (if needed) has been approved, site work has been completed, a building permit has been issued, construction activities have begun and substantial progress has been made toward completion of the project, as determined and verified in writing by the Building Inspector and Zoning Administrator. The implementation time limit may be extended administratively one time, for a period not to exceed one-year, if sufficient progress toward implementation is demonstrated, as determined and verified in writing by the Building Inspector and Zoning Administrator, and if a construction plan and timeline have been provided. In addition, the implementation time limit may be extended one time by the City Council, for a period not to exceed one year, if the need is demonstrated and a clear plan for completion is provided. For complex projects, a time limit for implementing a variance may be established that exceeds two years at the time of the variance approval, if the extended time limit is requested as part of the variance application and is based on a construction timetable that exceeds two years. If an implementation time limit beyond two years is approved, annual monitoring of progress is required. Any variance not implemented within one year of the date of approval, or within an approved extension is considered to be expired and must be reapplied for and is subject to any amendment to this chapter and any new conditions the Council to ensure compliance with the terms of the variance.
(I) Variances to impervious coverage in VHS-C and VHS-R Districts.
(1) Based on the findings listed below, the city has determined that a variance to exceed 20% impervious surface as required per the Department of Natural Resources Lower St. Croix River Bluffland and Shoreland District is acceptable in the VHS-C and VHS-R Districts subject to meeting the requirements of § 153.051 of this code, including the review and comment of the Department of Natural Resources.
(a) The properties in the VHS-C and VHS-R Districts are constrained in lot size.
(b) A precedent has been set that a maximum of 20% impervious coverage prohibits reasonable use within the district.
(c) The conditions of § 153.051 of this code allow for adequate review and improved protection from erosion concerns, groundwater contamination and surface water discharge.
(d) The city is required to adhere to and enforce the Lower St. Croix River Bluffland and Shoreland regulations.
(Prior Code, § 12-77) (Ord. 1997-10, passed 5-19-1998; Ord. 02-2009, passed 4-21-2009; Ord. 2004-17, passed 12-21-2004; Ord. 02-2014, passed 5-20-2014; Ord. 01-2022, passed 5-17-2022) Penalty, see § 153.999