DOES IT MEASURE UP?

I can still hear the words in my head.  I was at a Government Training Services session, maybe "Beyond the Basics of Planning and Zoning," or the "Advanced" edition.  The presenter said and then repeated: "Variances are all about measurement.  Always remember that."

Variances came up recently on a matter that had been in the works for some months, much to the frustration of the resident citizens/applicants. The most important point to glean from the episode is that one cannot be granted a use variance.  Think about it for just a minute.  To do so would be, in effect, spot zoning, which is a big "no-no." If one could be granted use variances, what would be the point of having a land use ordinance?  None, because anything would go. Minnesota does not allow such "variances."

Case law of a few years ago has resulted in legislation changing the standard from "undue hardship" to "practical difficulties," which is an easier one to meet, thus allowing municipalities more flexibility.  (And, yes, contrary to a uncontested statement made by a recent Board Chair, Eureka IS a municipality!!  Sheesh.)  The undue hardship standard mentioned such things as "unique to the property," "not caused by the property owner," and economic issues alone as not constituting an undue hardship.  It should be noted that as long as the landowner has a "reasonable use" of his property, no taking can exist.  Very simple uses can be considered reasonable: a garden, for example.

"Practical difficulties" can be met more easily, although there is still reference to "unique" and "not caused by."  Perhaps a relaxing of setbacks on a substandard but buildable lot of record ("grandfathered" lot), maybe five feet all around might be granted.  This would allow the property owner a larger house than what he could otherwise build on a small lot, yet could be viewed as not negatively affecting adjacent property owners, being only five feet in difference.  A public hearing must be held, thus allowing those neighbors to weigh in.  The Board, acting as the Board of Adjustments and Appeals, makes the decision, supported by a Finding of Facts.  The Board can impose reasonable and related conditions if it considers these desirable.

From our Ordinances: Ordinance 2, Chapter 2, Section 1,  C. Variances. Grant variances or relief from literal ordinance requirements in accordance with the provisions of Ordinance 3, Chapter 4, Section 16. To hear requests for variances from the literal provisions of the Ordinance in instances where their strict
enforcement would cause practical difficulties, and to grant such variances only when it is demonstrated that such actions will be keeping with the spirit and intent of the Ordinance. The Board of
Adjustments and Appeals may not permit as a variance any use that is not permitted under the Ordinance for property in the zone where the affected person’s land is located. The Board of
Adjustments and Appeals may permit as a variance the temporary use of a one family dwelling as a two family dwelling. The Board of Adjustments and Appeals may impose conditions in
the granting of variances to ensure compliance and to protect adjacent properties. Conditions imposed must be directly related to and must bear a rough proportionality to the impact created by
the variance. (Resolution 59, 8-13-2007), (Ordinance 2011-04)  Italics added.

For more detail see pages 86-89 in Eureka Ordinance: Variances

Consider this:
The Minnesota Association of Townships spring courses were held in March; the summer courses are being held now.  No one on the Board has requested funds to attend and no one has reported on these sessions. While it is true that there is a current member who has faithfully attended such sessions in the past and brought back information to the Board, many have not or haven't other than perhaps once or twice, a few years ago.  "Learn something new every day" is a good motto to live by. "Lifelong learner" is a title we should all be proud to bear.

 What do you think?