Subd. 1. Purpose. The purpose of this subsection is to provide relief from the strict application of the terms of this chapter, in instances where their strict enforcement would cause practical difficulties because of circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated to be in keeping with the spirit and intent of this chapter.
Subd. 2. Procedure. The process for filing a variance application is outlined below.
1. Prior to filing an application for variance, the prospective applicant(s) shall schedule a preliminary meeting with the Zoning Administrator or designee to discuss items including, but not limited to, the nature of the proposed use, consistency of the proposal with applicable city policies and standards, and information required for a formal application.
2. The applicant shall file the completed application form together with the required exhibits with the Zoning Administrator and shall pay a non-refundable filing fee and escrow as established by City Council.
3. The City Council shall approve, deny, or conditionally approve the variance within 60 days of receipt of the complete application, unless an extension has been provided pursuant to M.S. § 15.99, as amended from time to time, or a later date agreed to in writing by the applicant.
4. Following receipt of a complete application, the Zoning Administrator or designee shall set the date for a public hearing and publish the date, time, meeting location, subject site location, and brief description of the proposal in the official newspaper at least ten days prior to the public hearing. Written notices shall be mailed at least ten days prior to the public hearing to all owners of land within 500 feet of the boundary of the property to which the variance application. A copy of the public hearing notice for applications under local shoreland management controls shall be sent to the Commissioner of Natural Resources or the Commissioner’s designated representative and postmarked within ten days of the hearing.
5. Failure of a property owner to receive said notice(s) shall not invalidate any such proceedings as set forth in this subsection.
6. The Planning Commission shall hold the public hearing to consider the application and the possible adverse effects of the proposed variance. An application for variance shall not be approved unless a finding is made that failure to grant the variance will result in practical difficulties for the applicant in complying with the requirements of this chapter. Practical difficulties means that the applicant proposes to use the property in a reasonable manner not permitted by the chapter. In addition, as may be applicable, all of the following criteria must be met:
a. Because of the particular physical surroundings, lot shape, narrowness, shallowness, slope, or topographical conditions of the specific parcel of land involved, practical difficulties to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out;
b. The conditions upon which a petition for a variance is based are unique to the parcel of land for which the variance is sought and are not applicable, generally, to other property within the same zoning classification;
c. The purpose of the variance is not based exclusively upon a desire to increase the value or income potential of the parcel of land;
d. The alleged practical difficulties are caused by this chapter and have not been created by any persons having an interest in the parcel of land and are not self-created difficulties;
e. The granting of the variance will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public streets, or increase the danger of fire, endanger the public safety, or substantially diminish or impair property values within the neighborhood;
f. The granting of the variance will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel of land is located;
g. The variance is the minimum action required to eliminate the practical difficulties;
h. The variance does not involve a use which is not allowed within the respective zoning district;
i. The variance is in harmony with the general purposes and intent of this chapter;
j. The variance is consistent with the Comprehensive Plan;
k. The property owner proposes to use the property in a reasonable manner not permitted by this chapter; and
l. The variance will not alter the essential character of the locality.
7. Variances may only be granted in accordance with M.S. Chapter 462, as it may be amended from time to time, as applicable. A variance may not circumvent the general purposes and intent of subsection 1004.03. No variance may be granted that would allow any use that is not allowed in the underlying zoning district in which the subject property is located. Conditions may be imposed in the granting of a variance. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance. In considering a variance request, the Board of Adjustment must also consider whether the property owner has reasonable use of the land without the variance, whether the property is used seasonally or year round, whether the variance is being requested solely on the basis of economic considerations, and the characteristics of development on adjacent properties.
8. For existing developments, the application for variance shall clearly demonstrate whether a conforming sewage treatment system is present for the intended use of the property. The variance, if issued, must require re-construction of a non-conforming sewage treatment system.
9. The Planning Commission and city staff shall have the authority to request additional information be provided by the applicant concerning operational factors or to retain expert testimony with the consent and at the expense of the applicant concerning operational factors, said information to be declared necessary to establish performance conditions in relation to all pertinent sections of this chapter. Failure on the part of the applicant to supply all necessary supportive information may be grounds for denial of the request.
10. Upon receiving the report and recommendation of the Planning Commission and city staff, the City Council shall hold a public meeting to act on the application. The City Council may, before taking final action and subject to the limitations provided under M.S. § 15.99, as it may be amended from time to time, refer the matter back to the Planning Commission for further consideration based upon new information, or if the City Council finds that specific inconsistencies exist in the review process. The City Council shall provide the Planning Commission with a written statement detailing the reasons for referral.
11. Approval of a variance application shall require passage by a majority vote of the Council members present at the City Council meeting. Said approval shall be in the form of a resolution setting forth the findings of fact and conditions of approval associated with the variance.
a. A copy of all final decisions granting a variance under local shoreland management controls shall be sent to the Commissioner or the Commissioner’s designated representative and postmarked within ten days of final action.
b. When a variance is approved after the Department of Natural Resources has formally recommended denial in the hearing record, the notification of the approved variance required in item 11.a above shall also include the Board of Adjustment’s summary of the public record/testimony and the finding of facts and conclusions which supported the issuance of the variance.
c. In passing a variance to the floodplain management section of this chapter, the City Council shall make its decision in writing setting forth the findings of fact and the reasons for its decisions. In granting the variance, the City Council may prescribe appropriate conditions and safeguards such as those specified in subsection 1002.08. Violations of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter punishable under subsection 1004.02. A copy of all decisions granting variances shall be forwarded by mail to the Commissioner of Natural Resources within ten days of such action.
d. The Zoning Administrator shall notify the applicant for a variance that:
i. The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance; and
ii. Such construction below the 100-year or regional flood level increases risks to life and property. Such notification shall be maintained with a record of all variance actions. A community shall maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its annual or biennial report submitted to the Administrator of the National Flood Insurance Program.
12. Denial of applications for variance shall be accompanied by written findings of fact of the City Council including supporting data setting forth the reasons for the denial in terms of the ways in which the application fails to meet the applicable difficulties or hardship standard, intent of the Comprehensive Plan and/or this chapter or would be otherwise injurious to the public health, safety, and welfare.
13. Whenever an application for a variance has been considered and denied by the City Council, a similar application for variance affecting substantially the same property shall not be considered again by the Planning Commission or City Council for at least one year from the date of its denial.
Subd. 3. Information Required. Information required for all variance applications shall include all information as required by the city’s variance handout.
Subd. 4. Revocation. The Planning Commission may recommend, and the City Council may direct, the revocation of any variance for cause upon determination that the authorized variance is not in conformance with the conditions of the approval or is in violation of this chapter, City Codes, or other applicable regulations. The City Council or Planning Commission shall initiate an application, and the Zoning Administrator shall notify the responsible person that they have an opportunity to show cause why the permit should not be revoked. The application shall be processed and considered pursuant to the procedure set forth for processing variances by this subsection. The Zoning Administrator shall provide the applicant a copy of the proceedings and findings of the Planning Commission and City Council.
Subd. 5. Expiration. Unless the City Council specifically approves a different time when action is officially taken on the request, variances which have been issued under the provisions of this subsection shall expire without further action by the Planning Commission or the City Council, unless the applicant commences the authorized use within one year of the date the variance is approved; or, unless before the expiration of the one year period; the applicant shall apply for an extension thereof by completing and submitting a request for extension, including the renewal fee as established by City Council resolution. The request for extension shall state facts showing a good faith attempt to complete or utilize the use permitted in the variance application. A request for an extension not exceeding one year shall be subject to the review and approval of the Zoning Administrator. Should a second extension of time or any extension of time longer than one year be requested by the applicant, it shall be presented to the Planning Commission for a recommendation and to the City Council for a decision.
Subd. 6. Filing Variance with the County. A certified copy of all variance resolutions shall be filed with the County Recorder pursuant to Minnesota Statutes. A building permit for the subject construction shall not be issued until proof of recording has been provided to the City Administrator.
Subd. 7. Inspection. The city hereby reserves the right upon issuing any variance approval to inspect the premises to ensure compliance with the provisions of this chapter or any conditions additionally imposed.
Subd. 8. Site Improvement Performance Agreement. Upon approval of a variance application, the city may require the applicant to enter into a performance agreement prior to issuing of building permits or initiation of work on the proposed improvement or development. Said agreement shall guarantee conformance and compliance with the conditions of the variance approval and the codes of the city. The performance agreement shall be prepared and approved by the City Attorney and shall provide for all of the items specified by subsection 1006.07.