Subd. 1. Purpose. The purpose of this section is to provide for:
a. Administrative appeal. An appeal process where it is alleged that there is an error in any order, requirement, decision or determination by an administrative officer in the enforcement of this chapter.
b. Variance. A variance process to allow deviations from the strict provisions of this chapter including those placed on nonconformities. The variance process is neither appropriate nor applicable to allow a use on a property that is not permitted in the zoning district.
Subd. 2. Administrative appeal. An appeal shall only be applicable to an interpretation of legislative intent of provisions of this chapter and shall be submitted to the Zoning Administrator as indicated below.
a. Filing. The request for an appeal shall be submitted in writing and:
(1) Be submitted by the property owner or their agent and include contact information for both parties.
(2) State the specific grounds upon which the appeal is made.
(3) Be filed within 14 days of the date the administrative decision was mailed or sent by electronic mail.
(4) Include the fee as required by § 1301.02.
b. Notice to appellant. The Zoning Administrator shall notify the appellant of the date and time of the Planning Commission and City Council meetings where the request will be heard.
c. Stay of proceedings. An appeal stays all proceedings and the furtherance of the action being appealed, unless a stay would cause imminent peril to life and property.
d. Planning Commission action. The Planning Commission shall review the appeal at a public meeting, at which time the appellant or a representative thereof may appear to answer questions concerning the request.
(1) The Planning Commission shall consider possible adverse effects of the appeal.
(2) The Planning Commission shall make a finding of fact and may recommend any actions or conditions relating to the request as they deem necessary to carry out the intent and purpose of this chapter. The recommendation of the Planning Commission shall be forwarded to the City Council at a regularly scheduled meeting.
e. City Council action. Upon receiving the request and any report or recommendation of the Planning Commission and the city staff, the City Council shall make a recorded finding of fact within the time allowed by Minnesota Statutes. Action on the request shall require passage by a simple majority vote of a quorum of the City Council.
f. Decision. The Zoning Administrator shall send the appellant a copy of the final order of the City Council by mail.
g. Appeal of Council action. Any person(s) aggrieved by any decision of the board shall have the right to seek review of the decision with a court of record in the manner provided by the laws of the State of Minnesota, and particularly M.S. Chapter 462, as such statutes may be from time to time amended, supplemented or replaced.
Subd. 3. Variances.
a. Criteria. In considering all requests for a variance and in taking subsequent action, the city staff, the Planning Commission and the City Council, serving as the Board of Adjustments and Appeals, may approve a variance application upon finding that all of the following criteria, as applicable, are met.
(1) The variance, and its resulting construction and use, is consistent with the intent of the comprehensive plan and in harmony with the general purposes and intent of this chapter.
(2) The applicant has established that there are practical difficulties in complying with this chapter. Practical difficulties mean:
(a) The property owner proposes to use the property in a reasonable manner not permitted by this chapter;
(b) The plight of the landowner is due to circumstances unique to the property not created by the landowner; and
(c) The variance, if approved, would not alter the essential character of the locality.
(3) The variance would not be based exclusively on economic considerations.
(4) The variance shall not impair an adequate supply of light and air to adjacent property, unreasonably increase the congestion in the public street, or increase the danger of fire or endanger the public safety.
(5) The variance, and its resulting construction or project, would not be detrimental to the public welfare, nor would it be injurious to other land or improvements in the neighborhood.
(6) The variance is the minimum variance necessary to address or alleviate the practical difficulties.
b. Procedure.
(1) Pursuant to M.S. § 15.99, an application for a variance shall be approved or denied within 60 days from the date of its official and complete submission unless extended pursuant to statute or a time waiver is granted by the applicant. Pursuant to M.S. § 15.99, the city staff is hereby authorized to extend the 60 day time limit by a time period not to exceed 60 additional days, provided written notice of such extension is provided to the applicant before the end of the initial 60 day period.
(2) Application. Requests for variances, as provided within this chapter, shall be filed with the Zoning Administrator on an official application form. The application shall be accompanied by a fee as provided for by City Council resolution. The application shall also be accompanied by three copies of a survey signed by a land surveyor licensed in the State of Minnesota, and detailed written and graphic materials fully explaining the proposed change, development or use.
(3) Staff review/technical assistance reports. Upon receipt of an application for variance, the Zoning Administrator, or designee, may request additional information or may obtain outside expert advice at the consent and expense of the applicant. When all informational requirements have been complied with, the request shall be considered officially submitted. The Zoning Administrator, or designee, shall prepare technical reports and/or provide general assistance in preparing a recommendation on the request to the Planning Commission and City Council.
(4) Public meeting. Upon official submission of the request, the Zoning Administrator shall schedule a public meeting on the request for a regularly scheduled Planning Commission meeting occurring at least ten days from the date written notification of the public meeting is sent to all property owners within 500 feet of the boundary of the subject property. Failure of a property owner to receive the notice shall not invalidate any proceedings as set forth within this chapter.
(5) Planning Commission action. The Planning Commission shall conduct the public meeting, at which time the applicant or a representative thereof may appear to answer questions concerning the proposed request. The Planning Commission shall also take public testimony.
(a) The Planning Commission shall consider possible adverse effects of the variance. In the case of a variance request, the Planning Commission's judgment shall be based upon (but not limited to) the conditions set forth in Subd. 3.a. of this section.
(b) The Planning Commission and city staff shall have the authority to request any additional information from the applicant deemed necessary to establish performance conditions pertaining to the request with the consent and at the expense of the applicant.
(c) The Planning Commission shall make a finding of fact and recommend the actions or conditions relating to the request as they deem necessary to carry out the intent and purpose of this chapter. The recommendation shall be in writing and accompanied by any report and recommendation of the city staff. The written recommendation of the Planning Commission shall be forwarded to the City Council.
(6) Referral to City Council. Upon receipt of the Planning Commission report and recommendation, the Zoning Administrator shall place the request and any report or recommendation on the agenda of a regularly scheduled meeting of the City Council.
(7) City Council action. Upon receiving the request and any report or recommendation of the Planning Commission and the city staff, the City Council shall make a recorded finding of fact.
(a) Approval of a request shall require passage by a simple majority vote of a quorum of the City Council.
(b) The Council may impose any condition it considers necessary to protect the public health, safety and welfare, provided such conditions are directly related to and bear a rough proportionality to the impact of the variance.
(c) Whenever an application for a variance has been considered and denied by the City Council, a similar application for the variance affecting substantially the same property shall not be considered again by the Planning Commission or City Council for at least six months from the date of its denial; and a subsequent application affecting substantially the same property shall likewise not be considered again by the Planning Commission or City Council for an additional six months from the date of the second denial, unless a decision to reconsider the matter is made by not less than a simple majority vote of a quorum of the City Council.
(8) Lapse of variance. Whenever within one year after granting a variance, the use as permitted by the variance shall not have been completed or utilized, then the variance shall become null and void unless a petition for extension of time in which to complete or to utilize the use has been granted by the City Council. The extension shall be requested in writing and filed with the Zoning Administrator at least 30 days before the expiration of the original variance. There shall be no charge for the filing of the petition. The request for extension shall state facts showing all efforts to complete or utilize the use permitted in the variance. The Zoning Administrator shall present the request to the City Council for a decision.
(9) Appeal. Any person aggrieved by any decision of the City Council shall have the right to seek review of the decision with a court of record in the manner provided by the laws of the State of Minnesota, and particularly M.S. Chapter 462.
c. Performance agreement. In the case a variance is approved contingent upon certain conditions imposed by the Council, the council may require a performance agreement to be executed.
(1) The agreement shall be drafted by staff and executed by the applicant and the City Council. The agreement shall include:
(a) The terms of work and penalties for non-compliance in a form agreeable to the City Attorney; and
(b) Authorize acceptance of a financial guarantee to ensure the applicant completes the project per plan.
(2) The applicant shall provide the city with a letter of credit or cash deposit prior to the issuing of building permits or initiation of work on the proposed improvements or development. The security shall automatically renew with a minimum of two months' notice prior to cancellation and shall be used to guarantee conformance and compliance with the conditions of the variance and the ordinances of the city.
(3) The financial guarantee shall be in the amount of one and one-half times the City Engineer's or Building Official's estimated costs of labor and materials for the proposed improvements or development.
(4) The city shall hold the security until completion of the proposed improvements or development and a certificate of occupancy indicating compliance with the variance and ordinances of the city has been issued by the City Building Official.
(5) Failure to comply with the conditions of the variance and the ordinances of the city shall result in forfeiture of the security for action necessary on the part of the city to correct problems or deficiencies.
(1987 Code, § 1201.05) (Am. Ord. 383, passed 3-25-2002; Am. Ord. 485, passed 11-14-2011; Am. Ord. 547, passed --2017; Am. Ord. 550, passed - -2018; Am. Ord. 575, passed 12-14-2020)