(A) Creation and membership.
(1) A Board of Adjustment is hereby established. The Board of Adjustment shall be appointed by the County Board of Commissioners and shall consist of five members, one of whom must be a member of the Planning Commission. Effective 5-12-1987, the County Board shall appoint members to the Board of Adjustment for terms as follows:
(a) Two members with terms ending 12-31-1987;
(b) Two members with terms ending 12-31-1988; and
(c) One member term ending 12-31-1989.
(2) Thereafter, members of the Board shall be appointed for three-year terms beginning January 1. Members may be removed from office by the County Board for good cause shown. Every attempt shall be made to obtain a cross section of the county in appointing members to the Board, and at least three members of the Board of Adjustment must reside or own property in an unincorporated area of the county.
(3) No elected officer of the county, nor any employee of the county, shall serve as a member of the Board of Adjustment. The members of the Board of Adjustment shall be compensated as determined by the County Board and shall be paid their necessary expenses in the conduct of the business of the Board.
(4) Members shall not vote on issues on which they have a conflict of interest. Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a regular Board member from voting thereon shall be decided by majority vote of regular Board members, except the member who is challenged.
(5) The Board of Adjustment shall elect a Chairperson and Vice-Chairperson from among its members and it shall appoint a Secretary who need not be a member of the Board. It shall adopt rules for the transaction of its business. Such rules may include provisions for the giving of oaths to witness and the filing of written briefs by the parties. The Board shall provide a public record of its proceedings which shall include the minutes of its meetings, its findings and the action taken on each matter heard by it, including the final order.
(6) Meetings of the Board of Adjustment shall be held at the call of the Chair and at such other times as the Board in its rules of procedure may specify.
(B) General duties and responsibilities; variances and administrative appeals.
(1) The Board of Adjustment shall act upon all requests for variances and upon all questions as they may arise in the administration of this chapter, including the interpretation of zoning maps, and it shall hear and decide appeals from and review any order, requirement, decision or determination made by any administrative official charged with enforcing this chapter. Such appeal may be taken by any person, firm or corporation aggrieved, or by any officer, department, board or bureau of a town, municipality, county or state.
(2) Hearings by the Board of Adjustment shall be held within such time and upon such notice to interested parties as is provided in its adopted rules of procedure. The Board of Adjustment shall establish criteria necessary in its rules of procedure for filing an application for a variance or an appeal. Written notice of hearings held by the Board of Adjustment shall be sent to affected property owners as provided by law. The Board of Adjustment shall make its decision within 15 days of the hearing, but may continue the hearing to such length of time as it deems necessary to properly consider each case.
(3) The Board of Adjustment may reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from and, to that end, shall have all powers of the officer to whom the appeal was taken and direct the issuance of a permit. The reasons for the Board’s decision shall be stated in writing.
(C) Variance authority.
(1) The Board of Adjustment shall have the exclusive power to order issuance of variances from the terms of any official control including restrictions placed on non-conformities. Variances shall only be permitted when they are in harmony with the general purpose and intent of the official control, and when the variances are consistent with the Comprehensive Plan. Variances may be granted when the applicant for the variance establishes the criteria under division (D) below are met and there are practical difficulties in complying with the official control.
(2) Practical difficulties, as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by an official control; 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. 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.
(3) Variances shall be granted for earth sheltered construction as defined by M.S. § 216C.06, subd. 14, as it may be amended from time to time, when in harmony with the official controls.
(4) No variance may be granted that would allow any use that is not allowed in the zoning district in which the subject property is located.
(5) The Board of 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) Findings.
(1) The Board of Adjustment must review variance petitions and consider the following factors prior to finding that a practical difficulty has been presented. The applicant must provide a statement of evidence addressing the following elements to the extent they are relevant to the applicant’s situation.
(a) The granting of the variance will be in harmony with the County Land Use Plan.
(b) The property owner proposes to use the property in a reasonable manner not permitted by an official control.
(c) The plight of the owner is due to circumstances unique to the property not created by the owner.
(d) The proposal does not alter the essential character of the locality.
(e) The practical difficulty cannot be alleviated by a method other than a variance; and
(f) The granting of the variance will not adversely affect the environmental quality of the area.
(2) The Board of Adjustment may grant a variance if it finds that all of the above factors have been established. The Board of Adjustment must not approve a variance request unless the applicant proves all of the above factors and established that there are practical difficulties in complying with official controls. The burden of proof of these matters rests completely on the applicant.
(3) In addition to applying the factors above, in all situations where an applicant has applied for any variance “after-the-fact”, the Board may factor into its decision any elements of “bad faith”.
(E) Other duties of the Board of Adjustment.
(a) Extraordinary alteration of the lot through filling or excavation shall not constitute proof of an adequate site for sanitary facilities;
(b) When there is limited space for sewage treatment or no alternative sewage treatment site, the Board may limit the square footage of any proposed dwelling or expansion and may designate the site for seasonal use only; and
(c) The existing or proposed sewage treatment system must conform with § 155.090 of this chapter.
(2) Lot line adjustments. The Board of Adjustment may review lots of record in the office of the County Recorder which do not meet standards established by this chapter for size, width, elevation, depth or other provisions. The Board may require that such parcels be joined, combined, modified in size, shape or other ways to more nearly achieve the standards of this chapter if the owner wishes to use such parcels as building sites. The Board may initiate such proceedings or may act upon request of the property owner. If the Board determines that the lot is not acceptable as a building site, the Zoning Administrator shall provide a copy of the Board’s findings to the County Assessor.
(3) Allowances for lots not acceptable as building sites.
(a) When practical means of a lot adjustment cannot be made under division (E)(1) above, and in other appropriate circumstances, the Board of Adjustment may declare a lot not acceptable as a building site. When the Board does so, no well, sewage treatment system, nor holding tank may be installed on the lot.
(b) Lots declared not acceptable as building sites may be allowed, as reasonably determined by the Board of Adjustment:
1. One garage or other accessory building; provided, no living quarters, nor plumbing, are installed and all other chapter standards are met; and
2. One travel trailer, excluding a park trailer; if it complies with all the conditions of § 155.091 of this chapter.
(4) Floodplain interpretation. Where interpretation is needed as to the exact location of Floodplain District boundaries, as for example where there appears to be a conflict between the mapped boundary and actual field conditions, the Board must make the necessary interpretation based on elevations of the regional (100-year) flood profile and other available technical data.
(5) Temporary use permits.
(a) In instances of particular hardship, the Board of Adjustment may issue a temporary use permit. Such permits must be renewed at a frequency determined by the Board of Adjustment and administered by the Zoning Administrator. Temporary use permits are valid for six months or such other time period as the Board of Adjustment may deem appropriate. Written agreement from the applicant concerning the understanding between the applicant and the Board of Adjustment is to be filed with the Zoning Administrator before a temporary use permit is issued.
(b) The Zoning Administrator may grant a temporary use permit for no more than 45 days in an emergency when the requirement to wait for the Board of Adjustment to meet will cause undue hardship. This permit will only be valid if the applicant petitions for a temporary use permit from the Board of Adjustment, and will expire when the Board acts on the petition.
(F) Procedure.
(1) The person applying for a hearing before the Board of Adjustment shall fill out and submit to the Zoning Administrator a hearing application form and fee as determined by the County Board. It shall be the responsibility of the applicant to provide all information necessary for the Board of
Adjustment to reach a decision. All applications for variances must be accompanied by the following, unless the Zoning Administrator determines it is not needed for a proper review:
(a) A certificate of survey no more than five years old which shows all existing and proposed structures, well, septic systems and other pertinent data;
(b) A topographic grading plan showing all grading, surface water flow and erosion control; and
(c) A certificate of compliance for the septic system. If the system is non-compliant, needs to be enlarged, or a new system is proposed, a full design for the system may be needed.
(2) The Zoning Administrator shall refer the application to the Board of Adjustment for review. Notice shall be provided as required by M.S. § 394.26, as it may be amended from time to time.
(3) The Board of Adjustment shall hold a public hearing on the proposal. The petitioner or his or her representative shall appear before the Board in order to answer questions concerning the proposal.
(4) The Board of Adjustment may approve, approve with modifications or conditions or deny an application based on the information available and findings of the Board. All decisions by the Board of Adjustment shall be final; except that, any aggrieved person or persons, or any department, board or commission of the jurisdiction or of the state shall have the right to appeal within 30 days, after receipt of notice of the decision, to the District Court in the county in which the land is located on questions of law and fact.
(5) A certified copy of any order issued by the Board of Adjustment acting upon an appeal from an order, requirement or decision or determination by an administrative official, or a request for a variance, shall be filed with the County Recorder. The order issued by the Board of Adjustment shall include the legal description of the property involved. The Zoning Administrator shall be responsible for the document recording requirements of this section.
(6) Any violation of a condition or ruling made by the Board of Adjustment shall be a violation of this chapter. Failure to comply with any ruling of the Board of Adjustment shall void any variance or special permit granted by the Board of Adjustment.
(7) A variance shall be valid for a period of three years and, if not acted upon by the applicant or his or her assigns within that time, the variance shall be void.