WHAT IS A VARIANCE ANYWAY? WHEN DO I NEED ONE? HOW DO I GET ONE? WHAT ARE THE REQUIREMENTS?

Variances are addressed in Minnesota state statutes. Our Ordinances lay out the CRITERIA and the PROCEDURE for granting a variance, based on those statutes. The Board and the Commission are bound by these parameters of this law.

 The first thing one needs to know is that variances are all about measurement and measurement only. Minnesota does not grant USE variances. The use of your property is governed by the zoning in place.  Measurements such as setbacks can be difficult to meet on some properties even when the use is allowed.

You can find the Ordinance language on Variances by clicking on this link and going to page 90 of the Code. My purpose here is to point out the highlights.

One of the key criteria is that there is something unique to the property that presents "practical difficulties" in meeting these measurements. (The standard used to be "undue hardship," which was a harder standard to meet, but that has changed.)

Whatever is presenting the problem cannot be created by the current or previous owners. For example, the fact that the building you want to build is too big to easily fit on your property does not mean that setbacks would be reduced. You can build a smaller building that can meet setbacks and you still have a reasonable use of your property. The setback issue has been created by you because of your proposed building size. This would not be an instance of a variance being justified.

However, something like a steep drop off of the land on the property might mean that even a smaller building cannot easily meet setbacks. Perhaps all the adjustment needed is to reduce setbacks by five feet leaving a 25' setback instead of the usual 30'. This could be seen as a reasonable request for an exception to the "strict application" of the Ordinance. .

Note that the use of the property has to be in keeping with the general zoning, the purpose and intent of the Ordinance, the Comprehensive Plan and the local character of the area. What you want to build would otherwise be accepted except for your setback problem.

State statute provides that economic considerations alone shall not constitute practical difficulties. This is an important one.

To receive a variance, the landowner must fill out and submit a variance application. The Clerk as Zoning Administrator receives the application.

"The Zoning Administrator shall provide landowners within 1,000' of the applicant's property with notification of the application for a variance via first class mail." Why is this the case? Because the law provides these landowners the opportunity to weigh in with their views on the application. The variance cannot change the character of the locality. To grant a variance without such notice, in my opinion, would deprive those neighbors of their ability under the law to comment. 

The Zoning Administrator refers the application along with related information to the Planning Commission. The Commission reviews this in accordance with Minnesota Statute 462.354, subd 2. The applicant may appear before the Commission to explain his situation. The Commission  may recommend conditions to the Board. 

The Town Board, acting as the Board of Adjustments and Appeals, then places the item on its agenda at its next regular meeting and holds a public hearing on the matter. All proper notification of this hearing is in force as it is for any other public hearing, including mailed notice to property owners within 1,000' of the subject property. The Board renders its decision in accordance with the parameters outlined in the Ordinance. Any variances granted shall be recorded with the Dakota County Recorder's Office.

 

WHAT DOES IT MEAN WHEN YOU TURN IN YOUR PLANS WITH YOUR BUILDING PERMIT APPLICATION?

 

It's a distinction that many do not perceive, but it is important.

When a building permit is turned in, plans are to accompany the application. This is a requirement, but the Clerk, the Planning Commission and the Board simply see that they are submitted.

The Commission and Board review and approve or deny the application based on ZONING only. That is their sphere of authority.

These questions must be answered: Are you allowed the building? Is density cap met? Are you within the total square footage for accessory buildings? If you are housing animals, are they enclosed (building or pen) no closer than 175' from all neighboring residences? If it is an ag building, is it located at least 250' from neighboring residences, and vice versa. This applies for ALL ag buildings, housing animals or not. Do you qualify under the state statute to claim an ag exemption from the building code? Are ALL structures shown on your site plan, and all ALL the setbacks given? (Without the latter, the application should stop at the Clerk until complete and not go forward to the Commission until it is complete.) Are the well and septic shown?

And so on.

So now, regarding your plans, engineered or not: This falls strictly under the authority of the Building Official.

The Building Official is a trained, certified person who is hired by the Township to ensure that the MN Building Code is met. It is the STATE building code, not Eureka's code, although we have adopted the state code and all its amendments. The Building Official is the person who inspects and approves each stage of your building process, including the construction plans. He/she has that authority, not the Board.

SO, if you turn in plans, those plans are reviewed by the Building Official and a plan review fee is assessed. This fee must be paid before the permit is actually issued. Again, the Board does not review or weigh in on, nor do they approve your plans. Nothing should go forward until Inspectron, Eureka's Building official has okayed the plans.

Take the example, next, of an ag building. Since qualified ag buildings are exempt from Building Code inspections, all the Township does for one is review and approve the ZONING for that structure. The zoning review is required, even if inspections are not. As you see, these are two, separate domains.