(A) Purpose. The purpose of this section is to provide for consideration of requests for variances from the requirements of the zoning code including restrictions placed on nonconformities.
(B) Board of Adjustments and Appeals. The City Council shall act as the Board of Adjustments and Appeals.
(C) Standards for review of variance requests. The Board of Adjustments and Appeals shall consider variance requests in accordance with the following standards.
(1) Variances shall only be permitted when they are in harmony with the general purposes and intent of this zoning code.
(2) Variances shall only be permitted when consistent with the comprehensive plan.
(3) Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning code.
(a) “Practical difficulties” shall mean that the property owner proposes to use the property in a reasonable manner not permitted by the zoning code; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality.
(b) Economic considerations alone do not constitute practical difficulties.
(4) The Board of Zoning Adjustment may not permit as a variance any use that is not allowed under the zoning code for property in the zone where the land is located.
(5) The Board of Zoning Adjustment may impose conditions in the granting of variances. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance.
(D) Application and procedure. 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 by the city pursuant to statute or a time waiver is granted by the applicant. Additional city processing requirements are as follows.
(1) A pre-application meeting may be required by city staff at which the appropriate application procedures, requirements and applicable provisions relating to the request will be reviewed and explained.
(2) Request for a variance or appeal shall be filed with the Zoning Administrator on an official application form. Such application shall be accompanied by a fee as set forth in the current city fee schedule. This fee shall not be refunded.
(3) The application shall be considered as being officially submitted complete when the applicant has complied with all the specified informational requirements, which shall include the following:
(a) A written description of the request for the variance, including an explanation of compliance with the variance criteria set forth in this section; and
(b) Supporting materials, as outlined in § 153.192, as determined by the Zoning Administrator as applicable to be necessary for the complete and clear definition and understanding of the request.
(4) Upon receipt of a complete application, as determined by the Zoning Administrator, the City Clerk shall set a public hearing following proper hearing notification. The Planning Commission shall conduct the hearing and report its findings and make recommendations to the Board. Notice of the hearing shall consist of a legal property description, description of request and property location, and be published in the official newspaper at least 10 days prior to the hearing. Written notification of said hearing shall be mailed at least 10 days prior to all owners of land within 350 feet of the boundary of the property in question.
(5) Failure of a property owner to receive notice shall not invalidate any such proceedings as set forth within this section.
(6) The Zoning Administrator shall instruct the appropriate staff persons to prepare technical reports where appropriate, and provide general assistance in preparing a recommendation on the action to the Board.
(7) The Planning Commission and city staff shall have the authority to request additional information from the applicant concerning operational factors or to retain expert testimony with the consent and at the expense of the applicant concerning operational factors. The information is to be declared necessary to establish performance conditions in relation to all pertinent sections of this chapter to ensure compliance with and to protect adjacent properties and the public interest. Failure of the applicant to supply all necessary supportive information may be grounds for denial of the request.
(8) The Planning Commission shall make findings of fact and recommend approval or denial of the request. The Commission’s recommendation and the city staff’s report shall be presented to the Board, and shall be entered in and made part of the permanent written record of the Board meeting.
(9) The Board shall not act upon the variance until the Planning Commission has held a public hearing on the request. The Board shall act upon the request within 60 days from the date of submission, unless an extension has been provided, pursuant to M.S. § 15.99.
(10) Subject to limitations of M.S. § 15.99, if, upon receiving the reports and recommendations of the Planning Commission and city staff, the Board finds that specific inconsistencies exist in the review process and thus the final determination of the Board may differ from that of the Planning Commission, the Board may, before taking final action, refer the matter back to the Planning Commission for further consideration. The Board shall provide the Planning Commission with a written statement detailing the specific reasons for referral. This procedure shall be followed only one time on a singular action.
(11) In granting any variance under the provisions of this section, the Board shall designate such conditions in connection therewith as will, in its opinion, secure substantially the objectives of the regulations or provisions to which the adjustment or variance is granted, as to light, air, and the public health, safety, comfort, convenience and general welfare.
(12) Approval of a request shall require passage by a majority vote of the City Council.
(13) The Zoning Administrator shall keep a record of applications and variances and the Zoning Administrator shall serve a copy of the final order of the Board upon the applicant by mail. A certified copy of any approved variances shall be filed with the County Recorder.
(14) Whenever an application for a variance has been considered and denied by the Board, a similar application for a variance affecting substantially the same property shall not be considered again by the Planning Commission or Board for at least 6 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 Board for an additional 6 months from the date of the second denial unless a decision to reconsider such matter is made by a two-thirds vote of the full Board.
(E) Criteria. The Board of Adjustment shall not approve any variance request unless they find failure to grant the variance will result in practical difficulties to the applicant, and, as may be applicable, all of the following criteria have been met.
(1) Physical characteristics. That because of the particular physical surroundings, shape, or topographical conditions of the specific parcel of land involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out.
(2) Unique to parcel. That the conditions upon which an application 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.
(3) Purely financial. That the purpose of the variance is not based exclusively upon a financial hardship, or a desire to increase the value or income potential of the parcel of land.
(4) Self-created. That the alleged practical difficulty or hardship is caused by this chapter and has not been created by any persons having an interest in the parcel of land and is not a self-created hardship.
(5) Public welfare. That 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.
(6) Nuisance avoided. That the proposed variance will not impair an adequate supply of light and air to adjacent property, substantially increase the congestion of the public streets, increase the danger of fire, or endanger the public safety.
(7) Minimum action. That the requested variance is the minimum action required to eliminate the practical difficulties.
(8) Use variance. That the requested variance does not involve a use that is not allowed within the respective zoning district.
(F) Enforcement. Enforcement of the provisions of this section shall be in accordance with § 153.999. The city reserves the right upon issuing any variances to inspect the premises to ensure compliance with the provisions of this section or any conditions additionally imposed. Violation of an issued permit or of the provisions of this section shall be grounds for review of the variance by the Board of Adjustment.
(G) Expiration of variance. Unless the Board of Adjustment specifically approves a different time when action is officially taken on the request, approvals which have been issued under the provisions of this section shall expire without further action by the Planning Commission or the Board, within 1 year of the date of approval unless the applicant has substantially commenced the authorized use or improvement, or unless within 30 days prior to the expiration of the variance the applicant has petitioned for a time extension by completing and submitting a request for an extension, including the renewal fee as established by City Council resolution. Such extension request shall be submitted in writing and shall state facts showing a good faith attempt to complete or utilize the approval permitted in the variance. A request for an extension not exceeding 1 year shall be subject to the review and approval of the Board. Should a second extension of time or any extension of time longer than 1 year be requested by the applicant, it shall be presented to the Planning Commission for a recommendation and to the Board for a decision.
(H) Site improvement performance agreement and financial guarantee. Following the approval of a variance as required by this section and prior to the issuing of any building permits or the commencing of any work, the applicant as may be applicable, shall guarantee to the city the completion of all private exterior amenities as shown on the approved site plan and as required by the variance approval. The guarantee shall be made by means of a site improvement performance agreement and a financial guarantee as specified in § 153.999 of this chapter.
(I) Certificate of taxes paid. Prior to approving an application for a variance, the applicant shall provide certification to the city that there are no delinquent property taxes, special assessments, interest, or city utility fees due upon the parcel of land to which the variance application relates.
(J) Shoreland management overlay district. A variance may not circumvent the general purposes and intent of the Shoreland Management Overlay District. The Commission of the Department of Natural Resources or its assigned agent shall be notified in writing and the notice shall be postmarked at least 10 days in advance of the public hearing of any request of a variance included within the Shoreland Management Area. Notice of final action for any of the applications identified above shall be sent to the Commissioner of the Department of Natural Resources and postmarked within 10 days of final action.
(Ord. 2011-8-1, passed 8-9-2011; Am. Ord. 2022-5-7, passed 5-10-2022)