(A) Purpose. The Planning Commission shall be the Board of Adjustments and Appeals as provided for by M.S. § 462.354, Subd. 2, and shall have the power and authority to grant variances from any official control including restrictions placed on nonconformities and to impose such conditions in the granting of variances which are directly related to and bear a rough proportionality to the impact created by the variance. The purpose of this section is to provide for:
(1) An appeal process where it is alleged that there is an error in any order, requirement, decision, or determination by an administrative officer or in the enforcement of this chapter; and
(2) A variance from the literal provisions of this chapter in instances where, it is established by the applicant that a non-economic, practical difficulty in the reasonable use of a specific parcel of property exists and the requirements of this section have been met.
(B) Procedure.
(1) Applications generally; fee. Appeals or requests for variances, as provided within this chapter, shall be filed with the Zoning Administrator on an official application form. A fee shall be charged for all appeal or variance applications pursuant to a schedule adopted from time to time by resolution of the City Council. The fee shall be paid at the time of submitting the application and shall be non-refundable. The application shall also be accompanied by four oversized copies and one 11 by 17 inch copy (unless otherwise directed by the Zoning Administrator) of detailed written and graphic materials fully explaining the proposed change, development, or use. An application will not be accepted until all required materials and the application fee have been submitted. Application for an appeal or variance shall set forth reasons that the appeal or variance is justified in order to make reasonable use of the land, structure, or building, and that the appeal or variance is the minimum appeal or variance. Information required for all variance applications shall include the following items:
(a) Site development plan. A scalable site development plan, which shall include the information required by § 155.443(B)(l)(a) - (g).
(b) Legal description. A legal description of the property under consideration.
(c) Proof of ownership. Proof of ownership of the land for which a variance is requested.
(2) Staff review/technical assistance reports. Upon receipt of an application for appeal or variance, the Zoning Administrator shall, when the Zoning Administrator deems it necessary, refer the request to appropriate staff to ensure that information requirements are complied with. When all informational requirements have been complied with, and the application fee has been paid, the request shall be considered officially submitted. Also, when the Zoning Administrator deems it necessary, the Zoning Administrator shall instruct the appropriate staff to prepare technical reports and/or provide general assistance in preparing a recommendation on the request to the Planning Commission.
(3) Decision. The Planning Commission, serving as the Board of Adjustment and Appeals, shall, after receiving the written report and recommendation of the city staff, make findings of fact and make a decision on appeals where it is alleged by the appellant that error has occurred in any order, requirement, decision, or determination made by the Zoning Administrator in the enforcement of this chapter, and for variances from the literal provisions of this chapter.
(a) Appeals. An appeal shall be filed not later than 60 days after the applicant has received a written notice from the Zoning Administrator or the appeal shall be considered void. A public hearing shall not be required prior to the Planning Commission's decision on an appeal. Written notice shall be mailed by the Zoning Administrator, or its designee, to the applicant and all landowners abutting the subject property of the proposed appeal, at least ten days before the Planning Commission considers the appeal. The notice shall contain a brief description of the appeal sought, along with notice of the date, time, and place of the Planning Commission meeting wherein the appeal will be considered. Failure of the Zoning Administrator to comply with the notice provisions of this section shall not affect the validity of any subsequent proceedings. The Planning Commission shall render a decision on the appeal within 60 days from the date upon which the application for the appeal was deemed complete, unless extended as permitted by M.S. § 15.99 and any amendments thereto.
(b) Variances.
1. Notice and action. A public hearing shall be required prior to Planning Commission's decision on the issuance of a variance. Written notice shall be mailed by the Zoning Administrator, or its designee, to the applicant and all landowners abutting the subject property of the proposed variance, at least ten days before the Planning Commission considers the application for the variance. The notice shall contain a brief description of variance sought, along with notice of the date, time, and place of the Planning Commission meeting wherein the variance will be considered. Failure of the Zoning Administrator to comply with the notice provisions of this section shall not affect the validity of any subsequent proceedings. The Planning Commission shall render a decision on the variance application within 60 days from the date upon which the application was deemed complete unless extended as permitted by M.S. § 15.99 and any amendments thereto.
2. Requirements for variance approval.
(i) In considering all requests for a variance, the Planning Commission shall make findings of fact that the proposed action complies with the requirements of M.S. § 462.357 and any amendments thereto, which include but are not limited to:
a. Variances shall only be permitted when they meet the following:
i. They are in harmony with the general purposes and intent of the ordinance, and
ii. The variances are consistent with the Comprehensive Plan.
b. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance.
c. "Practical Difficulties," as used in connection with the granting of a variance, means that:
i. The property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance;
ii. The plight of the landowner is due to circumstances unique to the property not created by the landowner; and
iii. The variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute practical difficulties. Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems.
(ii) The Planning Commission may not permit as a variance any use that is not allowed under the zoning ordinance for property in the zone where the affected person's land is located.
(iii) The Planning Commission 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.
(4) Appeals from Planning Commission decision to the City Council. Appeals from decisions of the Planning Commission acting as the Board of Adjustments and Appeals shall be heard by the City Council as provided for by M.S. § 462.354, before any judicial review under M.S. § 462.361 may be initiated. An application for appeal to the City Council, requesting the Council to reconsider the decision of the Planning Commission, shall be received no later than 30 days after the date the Planning Commission has issued its written findings of fact and decision. A fee shall be charged pursuant to a fee schedule adopted from time to time by resolution of the City Council on all appeal requests. The fee shall accompany the application request by the appellant and shall not be refundable. The City Council shall take action on the appellant's request no later than 45 days after the date upon which the appellant's written request and the application fee has been received by the Zoning Administrator.
(C) Lapse of variance; requests for extension. Whenever within one year after granting a variance the use as permitted by the variance or appeal shall not have been completed or utilized, then such 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. Such extension shall be requested in writing and filed with the Zoning Administrator at least 30 days before the expiration of the original variance. The request for extension shall state facts showing a good faith attempt to complete or utilize the use permitted in the variance.
(D) Security. In such cases as a variance or appeal is approved, contingent upon certain conditions imposed by the Council, the Council may require a performance bond to be provided.
(1) Upon approval of a variance or appeal, the city shall be provided with a letter of credit, cash escrow, certificate of deposit, securities, or a cash deposit prior to the issuing of a building permit(s) or initiation of work on the proposed improvement(s) or development. The security shall be non-cancelable and shall guarantee conformance and compliance with the conditions of the variance or appeal and the ordinances and code provisions of the city.
(2) The security shall be in the amount of 1½ times the City Engineer's or a certified appraiser's estimated costs of labor and materials for the proposed improvements or development.
(3) The city shall hold the security until completion of the proposed improvements or development and a certificate of occupancy indicating compliance with the variance or appeal and ordinances and code provisions of the city has been issued by the city's Building Official.
(4) Failure to comply with the conditions of the variance or appeal and the ordinances and code provisions of the city shall result in forfeiture of the security for action necessary on the part of the city to correct problems or deficiencies.
(E) Property survey. In those cases where a stipulated requirement of this chapter has been modified through the granting of a variance or appeal, a property shall be staked, and a survey prepared by a state registered land surveyor shall be submitted to the city. The survey shall include, but not be limited to, lot dimensions, setbacks, easements, and buildings. The survey shall be a condition of the variance or appeal and shall be submitted prior to the initiation of any improvements on the property in question.
(Ord. 110, passed 11-15-97; Am. Ord. 0405, passed 5-11-04; Am. Ord. 0408, passed 12-14-04; Am. Ord. 0802, passed 3-11-08; Am. Ord. 0807, passed 10-14-08; Am. Ord. 1106, passed 8-9-11; Am. Ord. 1603, passed 3-8-16)