HomeMy WebLinkAbout9/14/10
City of Farmington
430 Third Street
Farmington, MN 55024
A Proud Past - A Promising Future
Committed to Providing High Quality,
Timely and Responsive Service to All
Of Our Customers
AGENDA
PLANNING COMMISSION
September 14, 2010
7:00 P.M.
CITY COUNCIL CHAMBERS
1. CALL TO ORDER
2. APPROVAL OF MINUTES
a) August 11, 2010
b) August 24, 2010 Special Meeting
3. PUBLIC HEARINGS
a) Conditional Use Permit Application to allow a Warehouse Retail (NAPA Auto Parts) use in the IP Zoning
District
Applicant: Doug Vinge
21205 Eaton Avenue
Farmington, MN 55024
b) Application for amendments to the Schwiness Retail Center Planned Unit Development
Applicant: Jon Einess
525 North 3rd Street #312
Minneapolis, MN 55401
c) Ordinance amending Section 10-6-28 (Downtown Commercial Overlay District Design Standards) regarding
screening and fencing
Applicant: City of Farmington
430 Third Street
Farmington, MN 55024
d) Ordinance amending Section 11-4-5 (Erosion Control and Turf Establishment) regarding the installation of
sod on new construction
Applicant: City of Farmington
430 Third Street
Farmington, MN 55024
4. DISCUSSION
a) Variance Law - Minnesota Supreme Court Ruling - Beat L. Krummenacher v. City of Minnetonka
5. ADJOURN
City of Farmington
430 Third Street
Farmington, Minnesota
651.280.6800 . Fax 651.280.6899
www.ciJarmington.mn.us
TO:
Planning Commission
FROM:
Lee Smick, City Planner
AICP, CND
SUBJECT:
Conditional Use Pennit Application to allow a Warehouse Retail (NAPA Auto Parts) use in the
IP Zoning District
DATE:
September 14,2010
INTRODUCTION
Mr. Doug Vinge, owner of Vinge Tile and Stone, has applied for a conditional use pennit [CUP] for a warehouse retail
use (NAPA Auto Parts distribution warehouse and retail center) within his building located at 21205 Eaton Avenue. The
property is zoned IP. The warehouse retail text amendment was recently approved by the City Council at its meeting on
September 7, 2010.
Planning Division Review
Applicant:
Doug Vinge
21205 Eaton Avenue
Fannington, MN 55024
Property Location:
21205 Eaton Avenue
Existing Zoning:
IP (Industrial Park)
2030 Comprehensive Plan:
Industrial
Existing Land Use:
Mixed Use Industrial Building
Surrounding Land Uses:
Industrial property to the north, west and east. CSAH 50 is adjacent to
the south.
Proposed land use:
A portion of the existing building is proposed to be utilized as a Napa
Auto Parts Distribution and Retail Center.
DISCUSSION
The applicant, Doug Vinge, has submitted a conditional use pennit application in order to allow a warehouse retail use on
the property addressed as 21205 Eaton Avenue. Mr. Vinge is proposing to lease approximately 5,400 square feet in the
Vinge Tile and Stone Building (please note floorplan attached as Ex. A) to Napa Auto Parts for a distribution warehouse
and retail center. The subject property is zoned IP (Industrial Park) which warehouse retail is a conditional use.
Napa would be situated between the two existing businesses located within the building. This will require that a new
entrance be installed. The warehouse distribution portion of the operation will take place in the rear of the space. In
addition, the mezzanine area above the Vinge Tile and Stone business will be utilized as storage. A retail area comprising
of approximately 800 square feet will be located in the front of the space. Per the recent text amendment for warehouse
retail uses, no more than 30% of the space occupied can be utilized for retail purposes. Napa is proposing to utilize
approximately 15% of the space as retail.
The proposed hours of operation are as follows:
Monday - Friday:
Saturday:
7am to 7pm
8am to 5pm
Off street parking will be accommodated by the existing parking lot. Napa has indicated that they need 6-8 parking stalls
for customers. Employees will park towards the rear of the building. The distribution trucks will utilize an existing
loading dock in the rear of the building.
Signage
A sign permit shall be submitted for all signage to be placed on the property. There is an existing monument sign for
EDCO Products on the subject property. If NAPA wishes to have a monument sign, they will need to work with EDCO
to share the existing monument sign as no other monument sign will be allowed on this property.
Conditional Use Criteria
A conditional use permit shall be approved is it is found to meet the following criteria:
1. The proposed use conforms to the district permitted and conditional use provisions and all general regulations of
this title.
The subject property is zoned IP (Industrial Park). The use of the property as a warehouse retail is a conditional
use in the IP zoning district.
2. The proposed use shall not involve any element or cause any conditions that may be dangerous, injurious or
noxious to any other property or persons and shall comply with the performance standards listed below:
The proposed use will not involve any elements or cause any conditions that may be dangerous, irifurious or
noxious to any other person or property.
3. The proposed use shall be constructed, designed, sited, oriented and landscaped to produce a harmonious
relationship of buildings and grounds to adjacent buildings and properties.
The proposed use will utilize the existing building on site.
4. The proposed use shall produce a total visual impression and environment which IS consistent with the
environment of the neighborhood.
Staff believes the proposed use is consistent with the industrial/business uses that entirely surround the property.
5. The proposed use shall organize vehicular access and parking to minimize traffic congestion in the neighborhood.
The proposed use will utilize the existing parking areas on site, therefore, vehicular access and parking at this
property will not greatly increase traffic congestion in the surrounding neighborhood.
6. The proposed use shall preserve the objectives of this title and shall be consistent with the comprehensive plan.
The subject property is comprehensively guided as Industrial. The proposed use is consistent with the 2030
Comprehensive Plan.
ACTION REOUESTED
Approve the conditional use permit allowing a warehouse retail use in the Vinge building at 21205 Eaton Avenue subject
to the following conditions:
1. The applicant obtains all necessary building permits from the City's Building Official.
2. A sign permit is applied for and approved for any external signage that may be placed on the premises.
3. Other conditions as may be recommended by the Planning Commission.
Respectfully submitted,
oL~~
Lee Smick, City Planner
AICP, CNU
Cc: Doug Vinge, Vinge Tile
Bruce Rydeen, Cerron Commercial Properties, LLC
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City of Farmington
430 Third Street
Farmington, Minnesota
651.280.6800 . Fax 651.280.6899
www.ci.farmington.mn.us
TO:
Planning Commission
FROM:
Lee Smick, City Planner
AICP, CNU
SUBJECT:
Application for amendments to the Schwiness Retail Center Planned Unit Development
DATE:
September 14,2010
INTRODUCTION
Jon Einess, owner of the Schwiness Retail Center otherwise known as Farmington Marketplace (Ugly Mug,
Pilot Knob Pizzeria) is seeking an amendment to the original PUD (Ex. A) for the Schwiness Retail Center.
DISCUSSION
Mr. Einess is proposing the following amendments to the PUD:
1. Building Area - The two buildings are not to exceed a footprint of 17,534 17.734 square feet. (A 100
square foot vestibule may be installed on the south building at the former Movie Gallery space. Subway has
already installed a 100 square foot vestibule on the north building.)
2. Parking - A minimum of +R 117 standard parking stalls and a minimum of 3 handicap accessible parking
stall will be maintained and used for commercial use by customers, vendors and other visitors to the Subject
Property. A minimum of 9 parking stalls may be removed on the west side of the south building and 1 stall
may be removed on the north side of the south building adjacent to the most easterly leased space. The City
and the Developer agree to a parking setback of 8 feet from the right of way line on the west side of the
Subject Property. (A Daycare is proposed on the west side of the south building, in the former Movie
Gallery space. The daycare will install a maximum 3,500 square foot playground adjacent to the most
westerly leased space on the south building and the construction of the playground may require the need to
remove 9 parking stalls.)
3. Playground - A playground may be constructed near the south building adjacent to the westerly leased
space at a maximum of 3.500 square feet.
4. Outdoor Dining - Outdoor dining may be installed adjacent to the restaurants In the Farmington
Marketplace.
5. Zoning - The following land uses are permitted under this Agreement and any other uses not included below
will require one of the following: (i) an amendment to this Agreement approved by the City Council; or (ii)
a conditional use permit authorized by the Board of Adjustment pursuant to the conditional use permit
process and city Code for the B-1 Limited Business District Zoning Classification:
b. Restaurants and fast food restaurants so long as the fast food restaurants are not free standing, are tenants
in the shopping center on the Subject Property, and do not have a drive through lane. Outside dining is
allowed where approved throu~h a PUD Amendment. (Outdoor dining is currently occurring adjacent to the
Ugly Mug. Additional outdoor dining has been requested by Pilot Knob Pizzeria adjacent to its leased space
in the south building).
1. Commercial Child Daycare Centers
6. Notices. Required notices to Developer shall be in writing, and shall be either hand-delivered to Developer,
its employees or agents, or mailed to Schwiness, LLC c/o Jon Einess by registered mail at the following
address: 525 North 3rd Street #312, Minneapolis, MN 55401. Notices to the City shall be in writing and
shall be either hand-delivered to the City Administrator, or mailed to the City by registered mail in care of
the City Administrator at the following address: Farmington City Hall, 430 Third Street, Farmington,
Minnesota 55024.
ACTION REQUESTED
Recommend approval of the above mentioned amendments and forward the recommendation to the City
Council.
Respectfully submitted,
Ia ~-,w
Lee Smick, City Planner
AICP, CNU
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Dakota County, MN
Disclaimer: Map and parcel data are believed to be accurate, but accuracy is not
guaranteed. This is not a legal document and should not be substituted for a title search,
appraisal, survey, or for zoning verification.
Map Scale
1 inch = 90 feet
http://gis.co.dakota.mn.us/website/dakotanetgis/printPreview.aspx?PrintOptData=DakotaCounty , MNIOIOIt... 9/7/2010
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PLANNED UNIT DEVELOPMENT AGREEMENT
AGREEMENT dated
, 2002, by and between the CITY OF
FARMINGTON, a Minnesota municipal corporation (referred to herein as "City"), and
Schwiness, LLC, a Minnesota Limited Liability Corporation (referred to herein as "Developer").
RECITALS
A. Developer owns property situated in the County of Dakota, State of Minnesota, and
legally described as Lot 4, Block 1, Dakota County Estates 9th Addition and holds an option to
purchase property situated in the County of Dakota, State of Minnesota, and legally described as
Lot 3, Block 1, Dakota County Estates 9th Addition.(collectively referred to herein as "Subject
Property").
B. The Subject Property was rezoned from R-l to Planned Unit'Development as part of
Ordinance 086-176, adopted the 18th day of February, 1986.
C. By agreement dated September 9, 1994, the City approved a Development Contract for
the Subject Property ("Development Contract").
NOW, THEREFORE, the parties agree as follows:
1. Request for ApprovaL Developer has asked the City to approve a Final Site
Plan for the Subject Property (also referred to in this Agreement as the "Site Plan").
2. Conditions of Approval; Conditions of Agreement. The City hereby approves
the Site Plan for the Subject Property subject to the conditions set forth in this Agreement, on
condition that Developer enters into this Agreement. The Developer owns that portion of the
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Subject Property described as Lot 4, Block 1, Dakota County Estates 9th Addition. It is the
Developer's intent to exercise the Developer's option to purchase that portion of the Subject
Property described as Lot 3, Block 1, Dakota County Estates 9th Addition upon City Council
approval of the Site Plan and this Agreement. This Agreement shall not become effective until
and unless Developer obtains ownership of both lots constituting the Subject Property.
3. Effect of Planned Unit Development Approval. For a period of three (3) years
from and after the date of this Agreement, no amendments to the City's Comprehensive Plan or
official controls shall apply to or affect the use, development density, lot size, lot layout, or
dedications of the development unless required by state or federal law or agreed to in writing by
the City and the Developer. Thereafter, notwithstanding anything within this Agreement to the
contrary, and subject to non-conforming use rights and to the extent permitted by State and
Federal Law, the City may require compliance with. any amendments to the City's.
Comprehensive Guide Plan, Zoning Ordinance, official controls, platting or dedication
requirements enacted after the date of this Agreement.
4. Plans. The City grants approval to the development of the Site Plan in
accordance with the following plans, which are on file at Fannington City Hall. The plans are
not attached hereto. If the plans vary from the written terms of this Agreement, the written terms
shall control. The plans are:
Plan A - Site Plan
Plan B - Elevation Drawings; Floor Plan
Plan C - Water Main Plan
Plan D - Grading/DrainagelUtilities Plan
Plan E - Landscape Plan
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5.
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Terms of Site Development.
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The Subject Property shall conform to the
following minimum requirements:
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A. Building Area - The two buildings are not to exceed a footprint of 17,534
square feet.
B. Building Design/Materials - The building design and materials will be
consistent with that of the site plan and building details approved by the City
Council. A minimum of 10% of the total building face will be made up of
brick, the remaining 90% will be made up of impregnated color rock faced
concrete block, stucco, stone and glass.
C. Parking - A minimum of 127 standard parking stalls and a minimum of 3
handicap accessible parking stalls will be maintained and used for commercial
use by customers, vendors and other visitors to the Subject Property. The City
and the Developer agree to a parking setback of 8 feet from the right of way
line on the west side of the Subject Property.
D. Signage - Both wall and pylon signage will be permitted and not to exceed the
following standards:
1. Wall signage - For each building, the total wall signage cannot exceed
10% of the following: the sum of the gross area of the two front
facades of the building. In no event shall the total wall signage
exceed 200 square feet per building. There is no size limitation on
individual signs so long as the above-referenced limitations are met.
11.
Pylon signage - Two pylon signs not to exceed 150 square feet for
each sign nor to exceed twenty-six (26) feet in height. Only one (1)
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pylon sign per lot. The minimum required setback for pylon signage is
approved to be reduced from the required fifty (50) foot setback to ten
(10) feet as measured from the C.S.A.H. 31 right-of-way easement or
twenty-five (25) feet from the actual west property line.
This signage does not include any necessary directional or parking signage.
E. Landscaping - Except as otherwise specifically provided herein, the Site Plan
will meet or exceed the minimum requirements of the City's Landscape
Ordinance.
F. Sidewalk - The Developer will be responsible for the construction of the
sidewalk along English Avenue, completing the connection between the two
existing sidewalks.
G. Trash Enclosures - The Developer will provide two (2) trash enclosure's (one
for each building on the Subject Property) that will be constructed with the
similar materials as proposed for the main structure.'
H. Side Yard Setback - The City and Developer agree that the side yard setback
requirements in the City Code shall not apply with respect to the lot line
separating Lot 3 Block 1, Dakota County Estates 9th Addition and Lot 4 Block
1, Dakota County Estates 9th Addition.
6. Zoning.
The following land uses are permitted under this Agreement and any other uses not included
below will require one of the following: (i) an amendment to this Agreement approved by the
City Council; or (ll) a conditional use permit authorized by the Board of Adjustment pursuant to
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the conditional use permit process and City Code for the B-1 Limited Business District Zoning
Classification.
a. Retail Facilities
b. Restaurants and fast food restaurants so long as the fast food restaurants are
not free standing, are tenants in the shopping center on the Subject Property,
and do not have a drive through lane.
c. Coffee Shops
d. Health Club
e. Offices
. f. Personal and Professional Services, including financial services
g. Personal Health & Beauty Services
h; Animal Clinics
":1'
1. Convenience Store, without gas
J. Automobile service and repair
k. Clinics
7. Compliance with Permit and Licenses. It is the responsibility of the Developer
to obtain and comply with all necessary approvals, permits, and licenses from the City of
Farmington, Dakota County, Minnesota Pollution Control Agency, Minnesota Department of
Health, and any other regulatory agency affected by or having jurisdiction over the site. All
costs incurred to obtain said approvals, permits, and licenses shall be the responsibility of the
Developer.
8. Compliance with Laws and Regulations. Developer represents to the City that
the proposed development complies with all applicable City, County, Metropolitan, State, and
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Federal laws and regulations, including but not limited to
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of the Farmington
City Code, planned unit development ordinance, subdivision ordinances, zoning ordinances, and
environmental regulations in effect during the course of this development or Agreement.
Developer agrees to comply with such laws and regulations.
9. Enforcement. Developer shall reimburse the City for reasonable costs incurred
in the enforcement of this Agreement, including reasonable engineering and attorney's fees.
Developer shall pay in full all bills submitted to it for the above-referenced costs by the City
within sixty (60) days after receipt. Bills not paid within sixty (60) days shall be subject to an
eight percent (8%) per annum interest charge.
; 10. .Miscellaneous.
A. Breach of any material term of this Agreement by Developer shall be
grounds for denial of building permits.
B. If any material portion, section, subsection, sentence, clause, paragraph, or
phrase of this Planned Unit Development Agreement is for any reason held invalid as a. result of
a challenge brought by Developer, their agents or assigns, the City may, at its option, declare the
entire Agreement null and void and approval of the final planned unit development shall thereby
be revoked.
C. The action or inaction of any party shall not constitute a waiver or
amendment to the provisions of this Agreement. To be binding, amendments or waivers shall be
in writing, signed by the parties, and approved by written resolution of the City Council. The
City's failure to promptly take legal action to enforce this Agreement after expiration of time in
which the work is to be completed shall not be a waiver or release.
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This Agreement shall run with the land and shall be recorded in the
D.
Dakota County Recorder's office. The Development Contract dated September 9, 1994, is
hereby terminated with respect to the Subject Property as of the date of this Agreement. The
parties shall file a release of such Development Contract covering the Subject Property within a
reasonable time after the date of this Agreement.
E. This Agreement shall be binding upon the parties, their heirs, successors,
or assigns, as the case may be.
F. Third parties shall have no recourse against the City or Developer under
this Agreement.
G. Except as otherwise specified herein, Developer shall pay all costs
incurred by Developer and the reasonable costs incurred by the City in conjunction with the
development as set forth in the Site Plan, including but not limited to Soil and Water
Conservation District Charges, legal, planning, engineering and inspection expenses incurred in
connection with approval and acceptance of the Site Plan, and the preparation of this Agreement.
H. Each right, power or remedy herein conferred upon the City is cumulative
and in addition to every other right, power or remedy, express or implied, now or hereafter
arising, available to City, at law or in equity, or under any other agreement, and each and every
right, power and remedy herein set forth or otherwise so existing may be exercised from time to
time as often and in such order as may be deemed expedient by the City and shall not be a waiver
of the right to exercise at any time thereafter any other right, power or remedy.
11. Notices. Required notices to Developer shall be in writing, and shall be either
hand-delivered to Developer, its employees or agents, or mailed to Schwiness, LLC c/o Jon
Einess by registered mail at the following address: 708 North First Street, #423, Minneapolis,
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MN 55401. Notices to the City shall be in writing and shall be either hand-delivered to the City
Administrator, or mailed to the City by registered mail in care of the City Administrator at the
following address: Farmington City Hall, 325 Oak Street, Farmington, Minnesota 55024.
CITY OF FARMINGTON
By:
Gerald G. Ristow, Mayor
And
Edward J. Shukle, City Administrator
Schwiness, LLC
By:
Jon Einess
Its: Chief Manager
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STATE OF MINNESOTA )
( ss.
COUNTY OF DAKOTA )
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The foregoing instrument was acknowledged before me this day of
,20_, by Gerald G. Ristow and Edward J. Shukle, the Mayor and City
Administrator of the City of Farmington, a Minnesota municipal corporation, on behalf of the
corporation and pursuant to the authority granted by its City Council.
Notary Public
STATE OF MINNESOTA )
( S8.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
,20_, by , the of
, a , on behalf of said
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
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AMENDMENT NUMBER ONE TO
PLANNED UNIT DEVELOPMENT AGREEMENT
This Amendment Number One to the Planned Unit Development Agreement
("Amendment") dated , 2010, by and between the CITY OF
FARMINGTON, a Minnesota municipal corporation (referred to herein as "City"), and
Schwiness, LLC, a Limited Liability Company (referred to herein as "Developer"), amends the
Planned Unit Development Agreement between City and Developer dated February 19, 2002
("PUD Agreement"). The PUD Agreement, as amended by the Amendment, is referred to
herein as the "Agreement". Capitalized terms have the same meeting as in the PUD Agreement,
except as otherwise provided in this Amendment.
RECITALS
A. Developer owns property situated in the County of Dakota, State of Minnesota,
and legally described as Lots 3 & 4, Block 1, Dakota County Estates 9th Addition (collectively
referred to herein as "Subject Property").
B. The Subject Property was rezoned from R-1 to Planned Unit Development as part
of Ordinance 086-176, adopted the 18th day of February, 1986.
C. By agreement dated September 9, 1994, the City approved a Development
Contract for the Subject Property ("Development Contract").
D. By Planned Unit Development Agreement dated February 19, 2002, the City and
Developer terminated the Development Agreement and agreed to terms and conditions for the
development of Farmington Marketplace Shopping Center on the Subject Property.
E. The Parties wish to amend the PUD Agreement as set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Site Plan. The Site Plan is revised to allow for the construction of an outdoor
playground area for a childcare center near the south building adjacent to the westerly leased
space. The subject property is addressed as 18500 Pilot Knob Road, Farmington, Minnesota
("South Building"). The playground area may not exceed 3,500 square feet. The Developer
may close the west drive along the South Building to accommodate the playground.
The Site Plan is also revised to allow for the removal of the easternmost parking space along the
front ofthe South Building to construct an outdoor dining area at the option ofthe Developer.
2. Terms of Site Development. Section 5 (A) and Section 5 (C) of the PUD
Agreement are amended to read as follows:
A. Building Area - The two buildings are not to exceed a footprint of 17,734
square feet.
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B. Parking - A minimum of 117 standard parking stalls and a minimum of 3
handicap accessible parking stall will be maintained and used for commercial use
by customers, vendors and other visitors to the Subject Property. A minimum of
9 parking stalls may be removed on the west side of the south building and 1 stall
may be removed on the north side of the south building adjacent to the most
easterly leased space. The City and the Developer agree to a parking setback of 8
feet from the right of way line on the west side of the Subject Property.
3. Zoning. Section 6 ofthe PUD Agreement is amended to read as follows:
6. Zoning. The following land uses are permitted under this Agreement and
any other uses not included below will require one of the following: (i) an amendment to this
Agreement approved by the City Council; or (ii) a conditional use permit authorized by the
Board of Adjustment pursuant to the conditional use permit process and city Code for the B-1
Limited Business District Zoning Classification:
a. Retail Facilities
b. Restaurants and fast food restaurants so long as the fast food restaurants are
not free standing, are tenants in the shopping center on the Subject Property,
and do not have a drive through lane. Outside dining is allowed where
approved through a PUD Amendment.
c. Coffee Shops
d. Health Club
e. Offices
f. Personal and Professional Services including, without limitation, financial
servIces.
g. Personal Health & Beauty Services
h. Animal Clinics
1. Convenience Store, without gas
J. Automobile service and repair
k. Clinics
1. Commercial Child Daycare Centers
4. Notices. Section 11 of the PUD Agreement is amended to read as follows:
11. Notices. Required notices to Developer shall be in writing, and shall be either
hand-delivered to Developer, its employees or agents, or mailed to Schwiness, LLC c/o Jon
Einess by registered mail at the following address: 525 North 3rd Street #312, Minneapolis, MN
55401. Notices to the City shall be in writing and shall be either hand-delivered to the City
Administrator, or mailed to the City by registered mail in care of the City Administrator at the
following address: Farmington City Hall, 430 Third Street, Farmington, Minnesota 55024.
5. Except as otherwise provided herein, the terms of the PUD Agreement are
unchanged.
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CITY OF FARMINGTON
By:
Todd Larson, Mayor
And
Peter Herlofsky, Jr., City Administrator
Schwiness LLC
By:
Jon Einess
Its: Chief Manager
STATE OF MINNESOTA )
( ss.
COUNTY OF DAKOTA)
The foregoing instrument was acknowledged before me this day of
, 20_, by Todd Larson and Peter Herlofsky, Jr., the Mayor and City
Administrator of the City of Farmington, a Minnesota municipal corporation, on behalf ofthe
corporation and pursuant to the authority granted by its City Council.
Notary Public
STATE OF MINNESOTA )
( ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
,20_, by , the of
, a , on behalf of said
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
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RESOLUTION NO.
AMENDING THE SCHWINESS RETAIL CENTER (FARMINGTON MARKETPLACE) PUD
Pursuant to due call and notice thereof, a regular meeting of the City Council of the City of Farmington,
Minnesota, was held in the Council Chambers of said City on the _ day of , 2010 at
7:00 P.M.
Members Present:
Members Absent:
Member
introduced and Member _ seconded the following:
WHEREAS, a public hearing of the Planning Commission was held on the 14th day of September, 2010
after notice of the same was published in the official newspaper of the City and proper notice sent to
surrounding property owners, and
WHEREAS, the Planning Commission recommended approval of the PUD Amendments on the 14th of
September, 2010;
NOW, THEREFORE, BE IT RESOLVED that the Schwiness Retail Center otherwise known as
Farmington Marketplace PUD be amended with the following conditions:
1. Building Area - The two buildings are not to exceed a footprint of ~ 17.734 square feet.
2. Parking - A minimum of ill 117 standard parking stalls and a minimum of 3 handicap accessible
parking stall will be maintained and used for commercial use by customers, vendors and other visitors
to the Subject Property. A minimum of 10 parking stalls will be removed on the west side of the
south building and 1 stall will be removed on the north side of the south building adiacent to the most
easterly leasable space. The City and the Developer agree to a parking setback of 8 feet from the
right of way line on the west side of the Subject Property.
3. Zoning - The following land uses are permitted under this Agreement and any other uses not included
below will require one of the following: (i) an amendment to this Agreement approved by the City
Council; or (ii) a conditional use permit authorized by the Board of Adjustment pursuant to the
conditional use permit process and city Code for the B-1 Limited Business District Zoning
Classification:
b. Restaurants and fast food restaurants so long as the fast food restaurants are not free standing, are
tenants in the shopping center on the Subject Property, and do not have a drive through lane. Outside
dining is allowed were approved through a PUD Amendment.
1. Commercial Child Daycare Centers
4. Notices. Required notices to Developer shall be in writing, and shall be either hand-delivered to
Developer, its employees or agents, or mailed to Schwiness, LLC c/o Jon Einess by registered mail at
the following address: 525 North 3rd Street #312, Minneapolis, MN 55401. Notices to the City shall
be in writing and shall be either hand-delivered to the City Administrator, or mailed to the City by
registered mail in care of the City Administrator at the following address: Farmington City Hall, 430
Third Street, Farmington, Minnesota 55024.
98382
1
This resolution adopted by recorded vote of the Farmington City Council in open session on the _ of
,2010.
Mayor
Attested to the _ day of
,2010.
City Administrator
98382
2
City of Farmington
430 Third Street
Farmington, Minnesota
651.280.6800. Fax 651.280.6899
www.ci.farmington.mn.us
TO:
Planning Commission
FROM:
Tony Wippler, Assistant City Planner
SUBJECT:
Amendment to Section 10-6-28 (Downtown Commercial Overlay District Design
Standards) Regarding Screening and Fencing
DATE:
September 14, 2010
INTRODUCTION
Attached for the Commission's review is an ordinance amending Section 10-6-28 (Downtown Commercial
Overlay District Design Standards) as it relates to screening and fencing.
DISCUSSION
The Downtown Commercial Overlay District was established and design standards implemented in 2009.
Currently, the design standards only vaguely mention fencing in the Screening requirements section, which is
listed below:
(1) Screening:
1. Screening of service yards, refuse, and waste removal areas, loading docks, truck parking areas
and other areas which tend to be unsightly shall be accomplished by the use of walls, fencing,
dense planting, or any combination of these elements. Screening shall block views from public
rights of way, private street and off street parking areas, and shall be equally effective in winter
and summer. Chainlink and slatted fencing are prohibited.
It is staffs intent with the drafted ordinance to add more specificity on types and heights of new fencing
allowed for commercial properties in the overlay zone. Generally, the proposed amendment includes the
following:
1. Adding language to allow fences up to eight (8') feet in height if used for screening purposes provided a
building permit has been approved through the Building Inspections Department.
2. Adding language regarding all other non screening fences (Decorative Fencing). Discussing height,
location and acceptable material for decorative fencing.
3. Adding language for fence maintenance.
4. Adding language that no fence shall be permanently attached to a historic landmark building or
structure.
ACTION REQUESTED
Recommend approval of the attached ordinance amending Section 10-6-28 of the zoning code and forward that
recommendation to the City Council.
Respectfully submitted,
"I 1.1. rQ
Ton~p~City Planner
CITY OF FARMINGTON
DAKOTA COUNTY, MINNESOTA
ORDINANCE NO.
AN ORDINANCE AMENDING SECTION 10-6-28 OF THE
ZONING CODE CONCERNING THE DOWNTOWN COMMERCIAL
OVERLAY DISTRICT DESIGN STANDARDS
THE CITY COUNCIL OF THE CITY OF FARMINGTON ORDAINS:
SECTION 1. Section 10-6-28 is amended by adding the underlined language below as
follows:
10-6-28: DOWNTOWN COMMERCIAL OVERLAY DISTRICT DESIGN
STANDARDS:
(A) Purpose: The purpose of this section is to establish design standards pertaining to the
commercial buildings in the downtown commercial district. The design standards are
intended to do the following:
1. Encourage integrated site planning to create a cohesive, sustainable built
environment.
2. Maintain and reinforce "small town" and "main street" architectural traditions.
3. Encourage an active, walkable, pedestrian environment.
4. Maintain the character of historic buildings.
5. Unify and articulate building facades.
6. Place a strong visual emphasis on streetscapes.
7. Require new construction to be compatible with existing buildings.
8. Provide for the compatible integration of commercial and residential uses located
on the edge of the downtown commercial district.
9. Encourage replacement or remodeling of architecturally incompatible buildings.
10. Adaptively reuse older buildings that contribute to the district's sense of time and
place.
11. Encourage the development of pocket parks, gardens, plazas, and courtyards for
public use.
12. Establish well defined transitions (mixed use buildings) between the downtown
and adjacent neighborhoods.
(B) Overlay District Boundary: The downtown commercial overlay district (DC) is
described as the property located south of the Vermillion River, west of 4th Street,
north of Walnut Street and east of 1 st Street.
(C) Process: The downtown commercial overlay district design standards will be
administered through the site plan process in section 10-6-23 of this chapter and, if
required under the design review process in section 2-11-5 of this code.
(D) Applicability: All new construction and renovations or additions of existing
commercial structures in the DC district will be required to meet the standards in this
chapter, unless otherwise provided. Projects exempt from meeting the standards are
those commercial buildings that are comprised of any of the following project types:
1. Interior remodels;
2. Buildings used solely for residential purposes;
3. Normal or routine maintenance and repair of existing structures;
4. Construction that does not require a building permit.
(E) Building Material And Design:
1. In the case of new construction, renovations, or additions, seventy percent (70%) or
more of the total surface area of exterior walls exposed to public view shall consist of
a mixture of two (2) or more of the predominant downtown finish materials (clay,
brick, stucco, natural stone, ornamental concrete; except for portions of exterior walls
not visible from the public viewshed). Extruded metal storefront framing may be used
only on window or door frames.
2. Transparent glass must comprise a minimum of fifty percent (50%) (but shall not
exceed 75 percent) of the total wall area of the first floor elevation on the primary
facade; transparent glass or facade openings shall comprise a minimum of twenty
percent (20%) (but shall not exceed 50 percent) ofthe total wall area on the upper
floor elevation of any street facade; upper story windows will be vertically
proportioned and have the visual appearance of traditional double hung sash.
3. Blank, windowless walls shall be avoided wherever possible.
4. Exterior walls shall not be covered with metal panels, EIFS (exterior insulation and
finish system), vinyl siding, faux half timbering, logs, shakes, shingles, exposed
aggregate, or poured in place concrete.
5. Preassembled clay brick panels, artificial stucco, decorative precast units resembling
stone, and other modem materials may be used that similarly match the appearance of
historic materials.
6. Standardized corporate or "trademark" commercial building types shall be
constructed to meet the architectural style of the downtown, which includes building
materials, glass, color, and signage.
7. The ground or street level of a building shall be visually distinguished from the upper
level(s) through the use of colors and/or building materials.
8. Imitation of historical styles shall be encouraged in new construction and renovation
of existing buildings; references to historic architectural styles and periods will be
interpreted in a contemporary manner; new and renovated buildings shall reinforce
and not compete with heritage landmark properties.
9. New commercial buildings shall solidify the relationship between old and new
buildings and support a human scaled, street oriented downtown environment. Infill
construction on side streets shall be designed with architectural features such as brick
facades.
10. The massing and bulk of new buildings shall be mitigated by varied massing and
proper articulation of street facades. Large "big box" commercial buildings shall be
designed to appear as multiple storefronts by breaking the facade into smaller bays of
twenty feet (20') in width in order to maintain a pattern integrated with and similar to
surrounding buildings.
11. The size, scale, massing, and facade materials of new construction will complement
the architectural character of existing historic buildings identified as heritage
landmarks.
12. Comer buildings shall be designed with two (2) street facades and a main entrance
on both sides.
13. The maximum height of new construction shall be forty five feet (45').
14. Rooflines shall be flat or gently sloping.
(F) Awnings/Canopies:
1. Where Allowed: Awnings/canopies shall be allowed over the first floor windows
and along the frontage of all building entrances.
2. Projection; Support: Awnings and canopies shall not project more than five feet
(5') into the public right of way, except where located above an entrance, in which
case the maximum projection shall not exceed eight feet (8'). Awnings and canopies
may not be supported by poles or other structural elements located in the public
right of way.
3. Length: Awnings and canopies should emphasize the rhythm of the facade bays,
windows and entrances, and shall not continue uninterrupted along the building
facade.
4. Height: The bottom of awnings and canopies should be at least eight feet (8') above
sidewalk grade.
5. Illumination: Backlit awnings and canopies are not permitted.
6. Inscription: Lettering on awnings and canopies shall comply with subsection 10-6-
3(B)1(k) of this chapter.
7. Materials: Awning and canopy materials should be limited to cotton, acrylic or
vinyl coated cotton, copper or bronze coated metal, or clear glass. Awnings shall be
designed with a slope. No horizontal awnings are allowed. Structural supports shall
be constructed of steel and/or aluminum and shall (if or where visible) incorporate
ornamental features.
(G) Parking Areas:
1. Required off street parking shall be provided by spaces at the rear or sides of a
building and provided with architecturally compatible security lighting, and
screened with landscape buffers or low walls.
2. Underground and structured parking shall be encouraged and new parking
structures shall be compatible with (but not indistinguishable from) adjacent
buildings in terms of height, scale, massing, and materials.
(H) Landscaping:
1. Landscaping within the downtown commercial overlay district shall comply with
section 10-6-10 of this chapter.
(1) Screening & Fencing:
1. Screening of service yards, refuse, and waste removal areas, loading docks, truck
parking areas and other areas which tend to be unsightly shall be accomplished by
use of walls, fencing, dense planting, or any combination of these elements.
Screening shall block views from public rights of way, private street and off street
parking areas, and shall be equally effective in winter and summer. Fencing for
screening purposes may be installed at a height of up to eight (8') feet. with the
approval of a building permit. Fencing used for screening purposes shall only be
allowed in the side and rear yards. Chainlink and slatted fencing are prohibited.
2. Mechanical equipment, satellite dishes, and other utility hardware, whether located
on the roof or exterior of the building or on the ground adjacent to it, shall be
screened from the public view with materials identical to or strongly similar to
building materials, or by landscaping that will be effective in winter, or they shall
be located so as not to be visible from any public right of way, private street or off
street parking area. In no case shall wooden fencing be used as a rooftop equipment
screen.
3. Decorative Fencing: All fencing (with the exception of fencing identified in the
screening requirements of Section 10-6-28 I( 1) of this ordinance) visible from a
public right of way shall not exceed a height of six (6') feet in the side and rear
yards and four (4') feet in the front yards. Decorative fencing shall consist of the
following materials:
(a) Wrought Iron
(b) Vinyl
(c) Ornamental Aluminum
4. Fencing Maintenance: The maintenance of all fences within the Downtown
Commercial Overlay District shall be in accordance with Section 10-6-12(H) of the
Zoning Ordinance.
5. No fencing shall be permanently attached to any historic landmark building or
structure.
(J) Signs:
1. Notwithstanding contrary provisions in this code the following provisions are
allowed in the DC district:
(a) Projecting signs perpendicular to the building. Projecting signs shall comply with
subsection 10-6-3(B)5(e) of this chapter (Spruce Street signs).
(b) Wall signs flat along building frontage as required in subsection 10-6-3(B)3(a) of
this chapter.
(c) Monument signs are allowed where existing building is set back from front
property line as required in subsection 1 0-6-3 (B)3 (b) of this chapter.
(d) Painted wall signs shall be permitted through a conditional use permit per
subsection 1O-6-3(B) 1 (1) of this chapter.
(e) A-frame signs are allowed per subsection 1O-6-3(B)1 (t) of this chapter.
2. Signs on historic landmark buildings must: a) not cause damage to historic
architectural features or building materials as a result of installation; and b) should
be designed and installed in such a manner that when they are removed or replaced
there is no physical evidence of their former presence. In other words, holes may
not be drilled in historic masonry, alterations may not be made of historic character
defining windows or doors, and no fasteners may be attached to any historic trim.
(Ord. 009-611, 10-19-2009)
SECTION 2. Effective Date. This ordinance shall be effective upon its passage and
publication according to law.
ADOPTED this _ day of
Farmington.
,2010, by the City Council of the City of
CITY OF FARMINGTON
By:
Todd Larson, Mayor
ATTEST:
By:
Peter Herlofsky, Jr., City Administrator
SEAL:
Approved as to form the _ day of
,2010.
By:
City Attorney
Published in the Farmington Independent the
day of
,2010.
City of Farmington
430 Third Street
Farmington, Minnesota
651.280.6800. Fax 651.280.6899
www.ci.farmington.mn.us
TO:
Planning Commission
FROM:
Tony Wippler, Assistant City Planner
SUBJECT:
Amendment to Section 11-4-5 (Erosion Control and Turf Establishment) regarding the installation of sod
on new construction
DATE:
September 14,2010
INTRODUCTION
Attached for the Commission's review is an ordinance amending Section 11-4-5 (Erosion Control and Turf Establishment) as it relates
to the installation of sod on new construction.
DISCUSSION
The City's Engineering Division has requested that Section 11-4-5 of the Subdivision Code be revised to reflect current procedures for
installation of sod on new construction. The following portions of Section 11-4-5 are proposed to be eliminated from the code:
(J) The required sod must be in place before a fmal certificate of occupancy will be issued. If the sod is not in place and
occupancy is requested by the builder, a temporary certificate of occupancy may be issued. The builderlhomeowner is
required to install sod within sixty (60) days after the temporary certificate of occupancy is issued. It is the responsibility of
the owner to establish turf in the area where sod is not required. A final certificate of occupancy will be issued only after the
turf has been established. The remaining areas of a lot that are not required to have turf established prior to issuance of the
final certificate of occupancy should be established with turf within sixty (60) days after the issuance of the fmal certificate of
occupancy.
(K) In periods of adverse weather conditions between approximately October 16 and April 30, a temporary certificate of
occupancy may be issued, but the installation of sod must be completed on or before July 1.
There are two reasons why the above referenced language is no longer warranted. First, the City does not withhold the issuance of a
certificate of occupancy for new construction because the installation of sod is incomplete. This is because the installation of sod is
not seen as a life safety issue. Secondly, per letter L of Section 11-4-5, the City requires that a $2,000 escrow is given to the City, at
the time of building permit, to ensure the grading and installation of sod and seed is completed and in accordance with the approved
grading plan.
ACTION REQUESTED
Recommend approval of the attached ordinance amending Section 11-4-5 of the subdivision code and forward that recommendation to
the City Council.
Respectfully submitted,
...
:5JJ~PI=~
CITY OF FARMINGTON
DAKOTA COUNTY, MINNESOTA
ORDINANCE NO.
AN ORDINANCE AMENDING SECTION 11-4-5 OF THE
SUBDIVISION CODE CONCERNING EROSION CONTROL
AND TURF ESTABLISHMENT
THE CITY COUNICL OF THE CITY OF FARMINGTON ORDAINS:
SECTION 1. Section 11-4-5 is amended by adding the underlined language and
removing the strikethrough language below as follows:
11-4-5: EROSION CONTROL AND TURF ESTABLISHMENT:
(A) Developers and builders are required to follow the erosion and sediment control
program. The program outlines minimum steps that will be required on building sites
where bare soil is exposed. Due to the diversity of building situations encountered,
each site will be individually evaluated and where additional measures or variances
are needed they will be specified at the discretion of the city engineering division.
(B) All grading plans and building site surveys will be reviewed for effectiveness of
erosion control measures in the context of the site topography and drainage. If plans
or surveys do not specify erosion control, these measures will be described on the
plans or surveys by the city's engineering division based on the Minnesota pollution
control agency's "best management practices". Plans and surveys with erosion control
specified are then returned with the permits.
(C) Silt fence is required to control erosion on all sites. The builder is responsible for
properly installing erosion control immediately after backfill of the foundation. If the
required erosion control is not installed within twenty four (24) hours after backfill of
the foundation, the builder will be issued a stop work order until erosion control
measures meet city requirements. An approved certificate of survey along with the
permit card shall be posted on the job site. The builder is responsible to maintain the
silt fence during the construction process. The city inspector or engineer will retain
the right to require additional silt fence at any time to ensure that erosion does not
occur. Silt fencelhay bales will not be required when the ground is frozen as
determined by the city.
(D) Temporary rock entrances are required on every construction site and are required
after backfilling of foundation. If the rock entrance is not installed immediately after
backfilling, a stop work order will be issued until the rock driveway is installed. Rock
driveways will also be required during the winter months after backfilling the
foundation.
(E) Streets should be cleaned and swept whenever tracking of sediments occur and before
sites are left idle for weekends and holidays. If streets are not clean, the city will
arrange for a private contractor to clean streets and will bill the charges accordingly.
(F) Interior lots shall be sodded from the roadside edge or the unpaved right of way to the
back comers of the furthermost building.
(G) Comer lots with two (2) sides of the lot adjacent to the street; in the front yard, sod
shall be installed from the roadside edge or the unpaved right of way in the front of
the building to the back comers of the furthermost building. Sod shall also be
installed on the street side yard within the boulevard commencing at the rear comer of
the building to the rear lot line.
(H) All areas that required silt fences during construction and along any portions of the
lot that adjoin drainage easements shall be sodded. Any remaining disturbed areas not
mentioned above may be seeded. Silt fences must be maintained throughout the
construction period until new vegetation is established.
(I) Turf slopes in excess of three to one (3: 1) are prohibited.
(1) The required sod must be in place before a final certificate of occupancy v,'ill be
issued. If the sod is not in place and occupancy is requested by the builder, a
temporary certificate of occupancy may be issued. The builderlhomeo','fner is
required to install sod 'Nithin sixty (60) days after the temporary certificate of
occupancy is issued. It is the responsibility of the oVlller to establish turf in the area
'.vhere sod is not required. A final certificate of occupancy "'fill be issued only after
the turfhus been established. The remaining areas of a lot that are not required to
have turf established prior to issuance of the final certificate of occupancy should be
established '.'lith turf within sixty (60) days after tho issuance of the final certificate of
occupancy.
(K) In periods of adverse ','feather conditions between approximately October 16 and
f..pril 30, a temporary certificate of occupancy may be issued, but the installation of
sod must be completed on or before July 1.
ill ~ The city shall collect a surety for the as built certificate of survey and turf
establishment before any building permit is issued. The surety is returned when the as
built certificate of survey, sod and seed requirements have been approved. If these
requirements are not met, the surety will be used to either complete the grading of the
lot consistent with the grading plan and/or complete the installation ofthe sod and
seed. (Ord. 002-470,2-19-2002)
SECTION 2. Effective Date. This ordinance shall be effective upon its passage and
publication according to law.
ADOPTED this _ day of
ATTEST:
SEAL
Approved as to for the
,2010.
CITY OF FARMINGTON
By:
By:
day of
T odd Larson, Mayor
Peter Herlofsky, Jr., City Administrator
,2010.
By:
City Attorney
Published in the Farmington Independent the
day of
,2010.
City of Farmington
430 Third Street
Farmington,.Minnesota
651.280.6800 . Fax 651.280.6899
www.ciJarmington.mn.us
TO:
Planning Commission
FROM:
Tony Wippler, Assistant City Planner
SUBJECT:
Minnesota Supreme Court Case (Beat L. Krummenacher v. City of Minnetonka) - Variance Case
Law
DATE:
September 14, 2010
INTRODUCTION / DISCUSSION
One June 24, 2010, the Minnesota Supreme Court handed down a decision on a court case involving a variance in the City
of Minnetonka [Krummenacher v. City of Minnetonka]. That court case in effect overturned the hardship criteria that
have been utilized for the past 20 years which was based upon a variance case decided by the Minnesota Court of Appeals
in 1989 [Rowell standard]. The recent ruling in the Minnesota Supreme Court case impacts the hardship criteria listed in
Chapter 10-3-6 of our Zoning Ordinance.
Additional Background
The Rowell case ruling stated that the language "the property cannot be put to a reasonable use" meant that the "property
owner would like to use the property in a reasonable manner that is prohibited by the ordinance." The question for the
court in this case was not, did they already have reasonable use of their property, but rather, was what they wanted to add
a reasonable use of the property. The court approved the variance, thereby setting the precedence that has been used by
municipalities for the past twenty plus years. The Supreme Court in the Minnetonka ruling this past June stated "we
simply cannot reconcile that standard [the Rowell standard] with the plain language of the statute." The court ruled that to
obtain a variance a property owner must prove that without the variance they will be unable to put the property to any
reasonable use. If that cannot be proved you are not entitled to a variance.
For your information, I have attached the complete opinion regarding the Krummenacher v. City of Minnetonka court
case.
With the new standard for reasonable use established by the court, it is likely the number of variances coming to the
Planning Commission for consideration will dramatically dwindle.
ACTION REOUESTED
None, this is for information only.
Respectfully submitted,
t:~le~~Plann~
STATE OF MINNESOTA
IN SUPREME COURT
A08-1988
Court of Appeals
Gildea, J.
Took no part, Dietzen, J.
Beat L. Krummenacher,
Appellant,
vs.
Filed: June 24, 2010
Office of Appellate Courts
City ofMinnetonka,
Respondent,
JoAnne K. Liebeler,
Respondent.
Paul W. Chamberlain, Ryan R. Kuhlmann, Chamberlain Law Firm, Wayzata, Minnesota,
for appellant.
George C. Hoff, Shelley M. Ryan, Hoff, Barry & Kozar, P.A., Eden Prairie, Minnesota,
for respondent City ofMinnetonka.
James M. Susag, Larkin, Hoffman, Daly & Lindgren Ltd., Bloomington, Minnesota, for
respondent JoAnne Liebeler.
Susan L. Naughton, St. Paul, Minnesota, for amicus curiae League of Minnesota Cities.
1
SYLLABUS
1. Although Minn. Stat. ~ 462.357, subd. Ie(a) (2008), restricts the ability
of property owners to expand their nonconforming uses, subdivision Ie(b) authorizes
a municipality to allow an expansion pursuant to ordinance. Because the legislature
gave the municipality discretion to authorize the expansion of a nonconforming use, the
decision to allow respondent to seek a variance under the ordinance to expand a
nonconformity was consistent with Minn. Stat. 9 462.357, subd. Ie.
2. Under Minn. Stat. S 462.357, subd. 6, to establish the "undue hardship"
required for a variance, a variance applicant must establish that "the property in question
cannot be put to a reasonable use" without the variance.
3. Because the municipality applied the wrong standard, a remand for
reconsideration of respondent's variance application under the con'ect standard is
appropriate.
Reversed and remanded.
OPINION
GILDEA, Justice.
This case involves the decision of respondent City of Minnetonka to grant a
variance to respondent JoAnne Liebeler so that she could expand her nonconforming
garage. Appellant Beat Krummenacher is Liebeler's neighbor and he challenges the
City's decision. The district court upheld the City's variance, and the court of appeals
affirmed. See Krummenacher v. City ofMinnetonka, 768 N.W.2d 377,384 (Minn. App.
2009). Because we conclude that the City applied the wrong standard to Liebeler's
2
vatiance request, we reverse and remand to the City for reconsideration under the correct
standard.
Liebeler owns property located in Minnetonka. Krummenacher is Liebeler's
neighbor to the west. Liebeler's property consists of a 2.4-acre lot, which contains a
2,975-square-foot home and an attached two-car garage. The property also contains a
detached flat-roofed garage that a previous owner constructed sometime in the 1940s.
The City has an ordinance requiring that the detached garage be set back a minimum of
50 feet from the property's boundary line. Minnetonka City Code 9300.10. Liebeler's
garage was constructed before this ordinance went into effect, and it does not satisfy the
setback requirement. Specifically, the garage is nonconforming because it is set back
only 17 feet from the front yard lot line. Because the garage was constructed before the
ordinance became effective, however, the garage is a permissible nonconformity.
On March 31, 2008, Liebeler applied for a variance to expand the detached garage
by adding a pitched roof and a second-story room above the garage that could be used as
a yoga studio and craft room. Liebeler's proposal was to renovate the garage itself, both
to fix its leakage problems and improve its appearance, and also to expand the garage by
adding a living space above it. Because adding a second story to the garage would result
in a vertical expansion of a nonconforming structure, Liebeler was required, under the
Minnetonka City Code, to apply for a variance from the City.! See Minnetonka City
It appears that Liebeler did not attempt to move the garage to a conforming
location because the unusual characteristics of the lot made relocation impracticable.
Liebeler's lot is L-shaped with only 45-feet of frontage on the road. Moreover, there is a
(Footnote continued on next page.)
3
Code ~ 300.29.3(g). Liebeler's proposed addition would not alter the footprint of the
garage and would comply with the City zoning requirements for a detached garage with
respect to maximum height and size.
The City's Planning Commission held a public hearing on May 15, 2008, to
consider Liebeler's request. Both Liebeler and Krummenacher had an opportunity to
present their arguments at that hearing. Liebeler explained that she believed that the flat
roof was causing leakage problems and that the structure itself needed to be updated.
Kmmmenacher objected to Liebeler's proposed project, explaining that the added height
of the garage would obstruct his view to the east.
The Planning Commission approved Liebeler's request for the variance. . The
Planning Commission based its decision on the following findings: (1) the denial of a
variance would cause "undue' hardship" because of the "topography of the site, width of
the lot, location of the driveway, and existing vegetation"; (2) the preexisting
nonconfOlming setback was a "unique circumstance"; (3) Liebeler's proposal would
comply with the "intent of the ordinance" because it satisfied the "zoning ordinance
requirements for a detached garage for maximum height and size" and did not alter the
footprint of the garage; and (4) the proposal would not alter the "neighborhood character"
because it would "visually enhance the exterior of the garage" and because there was
(Footnote continued from previous page.)
significant slope immediately behind the garage, making it difficult to move the garage
back.
4
another detached garage on a nearby property that was also set back only 17 feet from the
road.
Krummenacher appealed the Planning Commission's decision to the Minnetonka
City Council. The City Council held a public hearing on the variance request on June 30,
2008, at which both sides presented their arguments. After an examination of the record,
the City Council upheld the Planning Commission's decision and fmdings. The City
Council found that Liebeler's "proposal is reasonable and would meet the required
standards for a variance." The council listed four requirements and found that the
variance satisfied those requirements as follows:
(1) . Undue Hardship: there is an undue hardship due to the topography
of the site, width of the lot, location of the driveway and existing
vegetation.
(2) Unique Circumstance: The existing, non-conforming setback is a
circumstance that is not common to every similarly zoned property.
(3) Intent of the Ordinance: The improvements would not increase the
footprint of the garage, and would comply with the zoning ordinance
requirements for a detached garage for maximum height and size.
(4) Neighborhood Character: The garage improvements would not alter
the character of the neighborhood. The improvements would visually
enhance the exterior of the garage. There is also a detached garage on the
property to the east that is set back 17 feet from [the street].
Krummenacher then brought suit in district court challenging, among other things,
the City's fmding of undue hardship. Krummenacher served discovery requests asking
for additional documents from the City, but the City objected to providing more than the
City's record on the grounds that the case was properly subject to record review. The
court declined to order the City to produce the additional documents, and affirmed the
5
City's decision to grant the variance to Liebeler, concluding that the City's decision was
not "arbitrary and capricious."
Krummenacher appealed to the court of appeals'. On appeal, he raised three issues.
First, he argued that Minn. Stat. S 462.357, subd. Ie(a) (2008), prohibits the City from
granting a variance to allow the expansion of a nonconforming use. Krummenacher,768
N.W.2d at 380-81. Second, he argued that the City's approval of the variance request
was "arbitrary and capricious" because Liebeler had failed to meet the "undue hardship"
standard of Minn. Stat. ~ 462.357, subd. 6. See Krummenacher, 768 N.W.2d at 382-84.
Last, he argued that the district court erred in refusing to compel additional discovery by
the City. See id. at 384. The court of appeals affirmed the district court's decision in all
respects.
We granted Krummenacher's petition for review. On appeal to our court,
Krummenacher advances the same three arguments he made to the court of appeals.2
1.
We turn first to Krummenacher's argument that Minn. Stat. S 462.357, subd. Ie,
prohibits a municipality from granting a variance that allows for the expansion of a
nonconforming structure. Section 462.357, subdivision Ie, provid€s in relevant part:
(a) Any nonconformity, including the lawful use or occupation of land
or premises existing at the time of the adoption of an additional control
under this chapter, may be continued, including through repair,
2
On January 26, 2010, Liebeler filed a motion to dismiss, arguing that we should
dismiss the case on the grounds that construction of the expanded garage has been
completed, rendering Krummenacher's claims moot. The motion to dismiss is denied.
6
replacement, restoration, maintenance, or improvement, but not
including expansion. . . .
(b) A municipality may, by ordinance, permit an expansion or impose
upon nonconformities reasonable regulations to prevent and abate
nuisances and to protect the public health, welfare, or safety.
(Emphasis added.)3 Krummenacher argues that because the plain language of paragraph
(a) of subdivision Ie prohibits the expansion of any nonconformity, the City's decision
allowing Liebeler to expand her nonconforming garage must be reversed. The City
argues that subdivision le(a) restricts the ability of property owners to expand
nonconforming uses, but that under subdivision 1 e(b), a municipality is permitted to
allow an expansion pursuant to ordinance.
The construction of a statute is a question of law that we review de novo. Clark v.
Lindquist, 683 N. W.2d 784, 785 (Minn. 2004).4 To interpret a statute, we first assess
. In its brief, the City cites the 2009 version of section 462. 357, subdivision le(a)
which reads:
3
Except as otherwise provided by law, any nonconformity, including the
lawful use or occupation of land or premises existing at the time of the
adoption of an additional control under this chapter, may be continued,
including through repair, replacement, restoration, maintenance, or
improvement, but not including expansion. . . .
Minn. Stat. S 462.357 (Supp. 2009) (new language in italics). The "except as otherwise
provided" language in this version of subdivision le(a), however, did not become
effective until May 22,2009, which was after the City granted the variance. See Act of
May 21,2009, ch. 149, ~ 4, 2009 Minn. Laws 2025,2028. We therefore do not rely on
this version of the statute. We apply the 2008 version of subdivision Ie, the version of
the statute in effect when the variance was granted.
4
Liebeler did not propose to expand the footprint of her garage, and it is undisputed
that even as remodeled the garage would still be 17 feet from the yard line. In other
(Footnote continued on next page.)
7
"whether the statute's language, on its face, is clear or ambiguous." Am. Family Ins.
Group v. Schroedl, 616 N.W.2d 273,277 (Minn. 2000). If the law is "clear and free from
all ambiguity," the plain meaning contl"ols and is not "disregarded under the pretext of
pursuing the spirit." Minn. Stat. 9 645.16 (2008); Phelps v. Commonwealth Land Title
Ins. Co., 537 N.W.2d 271, 274 (Minn. 1995) ("Where the intention of the legislature is
clearly manifested by plain unambiguous language. . . no construction is necessary or
permitted."). The legislature has also stated that it intends the entire statute to be
effective. Minn. Stat. 9645.16 ("Every law shall be construed, if possible, to give effect
to all its provisions.").
This case is about a structure that does not conform with local land use
restrictions. We have recognized that a local zoning ordinance "may constitutionally
prohibit the creation of uses which are nonconforming." County of Freeborn v. Claussen,
295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972). As to "existing nonconforming uses,"
however, these "must either be permitted to remain or be eliminated by use of eminent
domain." Id. But a local government "is not required" to permit the expansion of such
nonconformities. Id.
Subdivision Ie is consistent with these principles. We read the subdivision in its
entirety and give effect to both paragraph (a) and paragraph (b). Minn. Stat. ~ 645.16;
(Footnote continued from previous page.)
words, the scope of the nonconformity would not be expanded if Liebeler' s request were
granted. The City nevertheless concedes that the variance sought an "expansion" for
purposes of Minn. Stat. 1} 462.357, subd. Ie, and we treat it as such for purposes of this
opinion.
8
see also In re Kenney, 374 N.W.2d 271, 274 (Mum. 1985) ("A statute will be construed
so as to give effect to all of its parts."). In paragraph (a), the legislature, with certain
exceptions not relevant here, prohibits a municipality from ordering the removal of
nonconformities.5 Further, the legislature has given property owners the right to repair or
replace a nonconformity so long as they do not expand the nonconformity. In other
words, as long as the property owner does not expand the nonconformity, she does not
need municipal approval to take corrective or remedial action on the nonconformity. But
under paragraph (b), if the property owner seeks to expand the nonconformity, the
municipality may, by ordinance, permit the expansion.
Consistent with the authority the legislature granted to it in paragraph (b) of
subdivision Ie, the City has an ordinance that addresses the expansion of
nonconformities. See Minnetonka City Code ~ 300.29(g)(1). This ordinance provides
that "an expansion of any non-conforming use may not be done without first obtaining a
variance." Id. Liebeler's proposed addition to her detached garage required a variance
because she proposed to "occup[y] space within a non-conforming area that was
previously not occupied. . . vertically." Id.
Krummenacher argues that because state law is superior to municipal law, the City
cannot grant a variance pursuant to its own ordinance if that variance violates state law.
The statute allows the municipality to require a nonconformity to be discontinued
when it "is discontinued for a period of more than one year," or "is destroyed by fire or
other peril to the extent of greater than 50 percent of its market value, and no building
permit has been applied for within 180 days of when the property is damaged." Minn.
Stat. ~ 462.357, subd. le(a)(I) and (2).
5
9
See Denney v. City of Duluth, 295 Minn. 22, 26, 202 N.W.2d 892, 894 (1972) ("It is
fundamental that a municipality's power to regulate land use by zoning exists by virtue of
authority delegated to it by the state."). But Minn. Stat. S 462.357, subd. le(b), grants the
City the discretion to permit the expansion of a nonconformity by ordinance. The City
provided a mechanism for expansion in section 300.29(g)(1), through a variance
application, and Krummenacher makes no argument that Liebeler's request for a variance
did not satisfy that section ofthe City Code.
Because the legislature gave the City discretion to authorize the expansion of
LiebeIer's nonconforming garage, we hold that the City's decision to allow Liebeler to
seek a variance under the ordinance to expand a nonconformity was consistent with
Minn. Stat. ~ 462.357, subd. Ie.
IT.
We turn next to Krummenacher's argument that the City's decision must be set
aside because it was arbitrary and capricious. Municipalities have "broad discretionary
power" in considering whether to grant or deny a variance. VanLandschoot v. City of
Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983). We review such decisions "to
determine whether the municipality "was within its jurisdiction, was not mistaken as to
the applicable law, and did not act arbitrarily, oppressively, or unreasonably; and to
determine whether the evidence could reasonably support or justify the determination."
In re Stadsvold, 754 N.W.2d 323,332 (Minn. 2008) (internal quotation omitted).
10
A.
Kmmmenacher argues that the City's decision was arbitrary and capncIOus
because the City did not apply the proper standard to determine whether Liebeler
demonstrated "undue hardship" as defmed in Minn. Stat. S 462.357, subd. 6. This
provision allows a city to grant a variance "from the literal provisions of the ordinance in
instances where their strict enforcement would cause undue hardship because of
circumstances unique to the individual property under consideration." Minn. Stat.
9 462.357, subd. 6.
Minnesota Statutes 9462.357, subd. 6, provides a definition of "undue hardship,"
and that defmition requires that three factors be met. Specifically, the statute defines
"undue hardship" as meaning,
the property in question cannot be put to reasonable use if used under conditions
allowed by the official controls) 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.
Id.6 To receive a variance, the applicant must show that he or she meets all of the three
statutory requirements of the "undue hardship" test. Id. In addition to satisfying the
"undue hardship" requirement, the statute allows municipalities to grant variances only
6 The Minnetonka City Code has almost identical provisions. Minnetonka City
Code 9300.07.1(a) ("A variance may be granted from the literal provisions of this
ordinance in instances where strict enforcement would cause undue hardship because of
circumstances unique to the individual property under consideration and when it is
demonstrated that such actions would be consistent with the spirit and intent of this
ordinance. Undue hardship means the property in question cannot be put to a reasonable
use if used under conditions allowed by this ordinance, the plight of the landowner is due
to circumstances unique to the property not created by the landowner, and the variance, if
granted, would not alter the essential character of the neighborhood.").
11
"when it is demonstrated that such actions will be in keeping with the spirit and intent of
the ordinance." ld. Krummenacher argues that Liebeler's application does not meet any
of the requirements for "undue hardship."
The ftrst factor a variance applicant must establish to satisfy the statute's defmition
of "undue hardship" is that "the property in question cannot be put to reasonable use if
used under conditions allowed by the offtcial controls." Minn. Stat. ~ 462.357, subd. 6;
see also Minnetonka City Code ~ 300.07.1(a). Krummenacher argues that based on the
plain and unambiguous language of the statute, a municipality may grant a variance only
when the property cannot be put to any reasonable use without it. According to
Krurnmenacher, Liebeler had a reasonable use for her garage without the addition of a
yoga studio and craft room-its current use as a storage space for vehicles.
Krummenacher argues therefore that the City did not have the statutory authority to grant
the variance.
The court of appeals rejected this argument, relying on its decision in Rowell v.
Board of Adjustment of Moorhead, 446 N.W.2d 917 (Minn. App. 1989), rev. denied
(Minn. Dec. 15, 1989). The court in that case interpreted the "undue hardship" section of
Minn. Stat. S 462.357, subd. 6, as requiring a variance applicant to show that the
"property owner would like to use the property in a reasonable manner that is prohibited
by the ordinance." ld. at 922.
The City urges that we should embrace the interpretation of "undue hardship" from
Rowell, and it appears from the record that the Rowell "reasonable manner" standard is
the standard the City used in evaluating Liebeler's request for a variance. The City
12
determined that the expansion of the garage was a reasonable use of the property and that
the request met the other requirements of the statute. Specifically, as reflected in the City
Council Resolution, the City found that "the proposal is reasonable" and with respect to
"undue hardship," that "[t]here is an undue hardship due to the topography of the site,
width of the lot, location of the driveway and existing vegetation."
The plain language of the statute and our precedent compel us to reject the City's
invitation to adopt Rowell's interpretation of "undue hardship." The statute provides that
to prove "undue hardship," the variance applicant must show that "the property in
question cannot be put to a reasonable use" without the variance. Minn. Stat. S 462.357,
subd. 6. Notwithstanding this language, the court of appeals concluded that "[t]his
provision does not mean that a property owner must show the land cannot be put to any
reasonable use without the variance." Rowell, 446 N.W.2d at 922. The court of appeals
essentially rewrote the statute to mean that a municipality may grant a variance when the
"property owner would like to use the property in a reasonable manner that is prohibited
by the ordinance." Id. at 922. Although the Rowell "reasonable marmer" standard has
been used for over 20 years, we simply cannot reconcile that standard with the plam.
language of the statute.
The Rowell standard is also inconsistent with our precedent. In support of the
application of.a "reasonable manner" standard for determining "undue hardship," Rowell
cites Cun-y v. Young, 285 Minn. 387, 173 N.W.2d 410 (1969), for the proposition that a
variance is "required where a setback requirement would force a property owner to build
a much smaller structure." Id. at 922. The version of Minn. Stat. S 462.357 in effect
13
when Curry was decided did not contain the defmition of "undue hardship" that is in the
current version of the statute. See Minn. Stat. ~ 462.357 (1969). Moreover, while we
discussed in CUrlY the dimensions of a structure that could theoretically be built to
comply with the statutory requirements, we based our determination that the variance was
properly granted on the municipality's ordinance. That ordinance required a showing of
"particular hardship," and we concluded that the standard was met because the
"plaintiffs' lot, in the absence of a variance, would be unusable for any purpose." Curry,
285 Minn. at 388-89,396, 173 N.W.2d at 411,415. The standard we applied in Curry is
more rigorous than the "reasonable manner" standard adopted in Rowell, and appears
consistent with the plain language of the first pad of the "undue hardship" definition that
is in the current statute. See Minn. Stat. S 462.357, subd. 6.
In addition, in formulating the "reasonable manner" standard, the court in Rowell
appears to have relied on the "practical difficulties" standard.7 See Rowell, 446 N, W.2d
at 922. But we have made a clear distinction between the "practical difficulties" standard
and the "undue hardship" standard. See Stadsvold, 754 N.W.2d at 328-31. As we
explained in Stadsvold, the "practical difficulties" standard applies to review of county
decisions to grant area variances, while the "undue hardship" standard applies to all
In suppod of the application of this standard, the court of appeals cited Merriam
Park Community Council, Inc. v. McDonough, 297 Minn. 285, 289-90, 210 N.W.2d 416,
419 (1973), overruled on other grounds by Northwestern College v. City of Arden Hills,
281 N.W.2d 865, 868 n.4 (Minn. 1979). As in Curry, the version of Minn. Stat.
S 462.357 in effect when Merriam Park was decided did not contain the defmition of
"undue hardship" that is in the cun-ent version of the statute. See 297 Minn. at 289-90,
210 N.W.2d at 418-19 (quoting statute).
7
14
municipal decisions to grant variances. Id. at 327-28 & n.2. Compare Minn. Stat.
~ 462.357, subd. 6, with Minn. Stat. ~ 394.27, subd. 7 (2008).8
In Stadsvold, we interpreted Minn. Stat. ~ 394.27, subd. 7, which sets forth the
statutory standard for county variances. This statute contains both the "practical
difficulties" standard and a "particular hardship" standard. Specifically, section 394.27
authorizes a county to grant variances from "the terms of any official control" but only
when the property owner would face "practical difficulties or particular hardship" in
meeting "the strict letter of any official control." Minn. Stat. ~ 394.27, subd. 7.9 We
distinguished the "less rigorous 'practical difficulties' " standard that applies to area
variance applications from the more rigorous "particular hardship" standard that applies
to use variance applications. Stadsvold, 754 N.W.2d at 330-31.10
While Minn. Stat. 9462.357, subd. 6, and Minn. Stat. S 394.27, subd. 7, both set
forth standards for granting variances, section 462.357, subdivision 6, applies to
municipalities and section 394.27, subdivision 7, applies to counties.
8
The same dichotomy of language at issue in Stadsvold existed in the predecessor
to the municipal zoning statute, section 462.357. Until 1965, section 462.22 (enacted in
1929, repealed in 1965) granted municipalities the power to vary or modify the
application of a zoning regulation where there were "practical difficulties or unnecessary
hardship" in complying with the strict letter of the regulation. Minn. Stat. ~ 462.22
(1961). In 1965, the legislature replaced Minn. Stat. S 462.22 with Minn. Stat. ~ 462.357.
Act of May 22, 1965, c. 670, 9 7, 1965 Minn. Laws 995, 1000-03. The new statute
replaced the "practical difficulties or unnecessary hardship" standard with the current
single "undue hardship" standard. Id. "Undue hardship" was undefmed in the statute
until 1982, when the legislature, borrowing the definition of "hardship" from the county
variance statute, Minn. Stat. ~ 394.27, added the current definition of "undue hardship" to
the statute. Act of Mar. 22, 1982, ch. 507, 9 22, 1982 Minn. Laws 592, 593.
9
As we discussed in Stadsvold, "[t]here are two types of variances: use variances
and area variances. 'A use variance permits a use or development of land other than that
(Footnote continued on next page.)
10
15
Adopting the Rowell "reasonable manner" standard would be inconsistent with the
distinction we made ill Stadsvold between the "practical difficulties" and "hardship"
standards. The legislature defmed the "hardship" standard in the county statute the same
way it defined the "undue hardship" standard in the municipal statute. II Because the
legislature used the same language in both the county and city variance statutes when
defming "hardship," our analysis in Stadsvold requires us to conclude that the "undue
hardship" standard in Minn. Stat. ~ 462.537, subd. 6, is more demanding than the
"practical difficulties" standard the court of appeals appears to have relied on in Rowell,
446 N.W.2d at 922.
Moreover, with respect to the "practical difficulties" standard, we identified in
Stadsvold several factors the county should consider in assessing whether that standard
was met:
(1) how substantial the variation is in relation to the requirement; (2) the
effect the variance would have on government services; (3) whether the
variance will effect a substantial change in the character of the
neighborhood or will be a substantial detriment to neighboring properties;
(4) whether the practical difficulty can be alleviated by a feasible method
other than a variance; (5) how the practical difficulty occurred, including
(Footnote continued from previous page.)
prescribed by zoning regulations.' . . . An area variance controls 'lot restrictions such as
area, height, setback, density and parking requirements.'" 754 N.W.2d at 329 (quoting
In re Appeal a/Kenney, 374 N.W.2d 271,274 (Minn. 1985)).
" 'Hardship' as used in connection with the granting of a variance means the
property in question cannot be put to a reasonable use if used under the conditions
allowed by the official controls; 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." Minn. Stat. S 394.27, subd. 7.
II
16
whether the landowner created the need for the variance; and (6) whether,
in light of all of the above factors, allowing the variance will serve the
interests of justice.
754 N.W.2d at 331 (footnote omitted). Rowell's interpretation of the "undue hardship"
standard, requiring only that the proposed use be "reasonable," would render the "undue
hardship" standard in section 462.357 less stringent than the "practical difficulties"
standard and much less stringent than the "particular hardship" standard in the county
variance statute, which the "undue hardship" standard appears to parallel. See Stadsvold,
754 N. W.2d at 331. In short, our analysis in Stadsvold simply does not leave room for
the Rowell "reasonable manner" standard.12
The City argues that, even if Rowell was based on an erroneous reading of the text
of section 462.357, subdivision 6, the standard in Rowell has been used by municipalities
for many years in determining whether to grant a variance. See, e.g., Mohler v. City of St.
Louis Park, 643 N.W.2d 623,631 (Minn. App. 2002); Nolan v. City of Eden Prairie, 610
N.W.2d 697, 701 (Minn. App. 2000); Sagstetter v. City of St. Paul, 529 N.W.2d 488,492
(Minn. App. 1995). The City suggests that, because the legislature has amended section
462.357 many times since Rowell and has not disturbed the court of appeals'
interpretation of the "undue hardship" standard, we should treat the legislature as having
ratified the Rowell standard. But the legislature has provided that "[w]hen a court of last
resort has construed the language of a law, the legislature in subsequent laws on the same
subject matter intends the same construction to be placed upon such language." Minn.
Stat. 9 645.17(4) (2008). The court of appeals is not "a court of last resort." See
Anderson-Johanningmeier v. Mid-Minnesota Women's Ctr., Inc., 673 N.W.2d 270, 276
(Minn. 2002) (stating that the court of appeals is not the court of last resort with respect
to statutory construction). Nor does the denial of a petition for review give a court of
appeals decision more precedential value than a court of appeals decision from which no
review was sought. Murphy v. Milbank Mut. Ins. Co., 388 N.W.2d 732, 739 (Minn.
1986). We therefore reject the City's argument that the legislature has ratified the Rowell
standard.
12
17
We recognize that the standard we apply today, while followed elsewhere, is not
the universal rule.13 For example, in Simplex Technologies, Inc. v. Town of Newington,
766 A.2d 713 (N.H. 2001), the New Hampshire Supreme Court provided a thorough and
insightful review of the development of land use variance law, and its practical
construction in modem times. The New Hampshire statute did not contain a specific
definition of "unnecessary hardship'" like our statute does, and the court concluded that
its prior defmition of the statutory term "unnecessary hardship" "ha[ d] become too
restrictive in light of the constitutional protections by which it must be tempered." Id. at
717. The New Hampshire Supreme Court framed the issue in the following terms:
Inevitably and necessarily there is a tension between zoning ordinances and
property rights, as courts balance the right of citizens to the enjoyment of
While most jurisdictions use the phrase "unnecessary hardship" rather than "undue
hardship" as the applicable standard, many jurisdictions appear to require that the
variance applicant establish real hardship if the variance is denied rather than simply
requiring that the applicant show the reasonableness of the proposed use. See, e.g.,
Larsen v. Zoning Bd. of Adjustment of Pittsburgh, 672 A.2d 286, 290-92 (pa. 1996)
(holding that the "mere desire to provide more room for a family member's enjoyment" is
insufficient to constitute "unnecessary hardship" under the statute and requiring
applicants to show that, if the variance request is denied, the property will be "practically
useless"); OK Properties v. Zoning Bd. of Review of Warwick, 601 A.2d 953, 955 (R.I.
1992) ("The court has determined that unnecessary hardship exists when restricting the
property to the permitted uses within the zoning ordinance will deprive the property
owner of all beneficial use of the property and that granting a variance becomes
necessary to avoid an indirect confiscation of the property."); Cochran v. Fabiax County
Board of Zoning Appeals, 594 S.E.2d 571, 577 (Va. 2004) ("[T]he [Board of Zoning
Appeals] has no authority to grant a variance unless the effect of the zoning ordinance, as
applied to the piece of property under consideration, would, in the absence of a variance,
interfere with all reasonable beneficial uses of the property, taken as a whole.") (internal
quotation marks omitted); 3 Anderson's Law of Zoning ~ 20.16 (Kenneth H. Young ed.,
4th ed., 1996) (describing different states' approaches to the "unnecessary hardship"
standard and suggesting that most states give the term a fairly restrictive construction).
13
18
private property with the right of municipalities to restrict property use. In
this balancing process, constitutional property rights must be respected and
protected from unreasonable zoning restrictions.
ld. at 716-17. In light of these considerations, the New Hampshire Supreme Court said
that "unnecessary hardship" would, in the future, be established when a landowner
showed that (1) a zoning restriction as applied interferes with a reasonable use of the
property, considering the unique setting of the property .in its environment; (2) no fair and
substantial relationship exists between the general purposes of the zoning ordinance and
the specific restriction on the property; and (3) the variance would not injure the public or
private rights of others. ld. at 717.14
Had the Minnesota Legislature not defined "undue hardship" in Minn. Stat.
9 462.357, subd. 6, we might consider the approach articulated in Simplex. IS A flexible
variance standard allows municipalities to make modest adjustments to the detailed
application of a regulatory scheme when a zoning ordinance imposes significant burdens
on an individual, and relief can be fashioned without harm to the neighbors, the
community, or the overall purposes of the ordinance. See David W. Owens, The Zoning
Variance: Reappraisal and Recommendations for Reform of a Much-Maligned Tool, 29
Colum. J. Envtl. L. 279, 317 (2004) ("If the variance power is to be used both as a
These standards were subsequently codified. See N.H. Rev. Stat. Ann. S 674:33
(Supp. 2009).
14
The factors set forth in Simplex are not dissimilar to the factors we embraced in
Stadsvold in constming "practical difficulties." See 754 N.W.2d at 331 (discussing
factors for consideration under the "practical difficulties" standard).
15
19
constitutional safeguard and as a tool for flexibility, zoning enabling acts and local
ordinances should be amended to delineate these two purposes and set different standards
for each. The failure to make such a distinction underlies much of the past controversy
regarding variances. Courts and commentators have traditionally viewed the variances as
the former-a very limited tool for avoidance of constitutional infIrmity in extraordinary
cases. Most variance petitions, and consequently most board of adjustment decision-
making, have viewed the variances as the latter-a tool to provide flexible
implementation rather than constitutional infirmity.").
We recognize that the Rowell "reasonable manner" standard represents a
longstanding interpretation of the undue hardship standard in Minn. Stat. ~ 462.357,
subd. 6, and that Minnesota municipalities have been granting variances under the
"reasonable manner" standard for many years. We also recognize that our decision will
result in a restriction on a municipality's authority to grant variances as compared with
the "reasonable manner" standard. But whatever value we may fmd in a more flexible
standard, particularly with regard to area variances, we cannot ignore the plain language
of the statute. See State v. Peck, 773 N.W.2d 768, 773 (Minn. 2009) ("We have no
opportunity to ignore part of the legislature's defmition."). We are unable to interpret the
statutory language to mean anything other than what the text clearly says-that to obtain
a municipal variance, an applicant must establish that "the property in question cannot be
put to a reasonable use if used under conditions allowed by the offIcial controls." Minn.
Stat. S 462.357, subd. 6. Therefore, unless and until the legislature takes action to
provide a more flexible variance standard for municipalities, we are constrained by the
20
language of the statute to hold that a municipality does not have the authority to grant a
variance unless the applicant can show that her property cannot be put to a reasonable use
without the variance.
Based on the plain language of the statute, and our precedent interpreting language
similar to "undue hardship" in the context of a local government's authority to grant
variances, we reject the "reasonable manner" standard from Rowell. We hold that the
City inaccurately applied the fIrst factor in the "undue hardship" defInition of Minn. Stat.
~ 462.357, subd. 6. Our resolution of this issue makes it unnecessary for us to resolve
the other issues Krummenacher raises on appeal.
B.
Having concluded that the City applied the law incorrectly, we must address the
remedy.. In cases where a variance has been denied, the general rule is that "[i]f the
zoning authority's decision is arbitrary and capricious, the standard remedy is that the
court orders the permit to be issued." Stadsvold, 754 N.W.2d at 332; see also In re
Livingood, 594 N.W.2d 889,895 (Minn. 1999). But there is an exception to this general
rule "when the zoning authority's decision is premature and not necessarily arbitrary."
Stadsvold, 752 N.W.2d at 333 (internal quotation omitted). For example, in
Earthburners, Inc. v. County of Carlton, where it was unclear whether the zoning
authority had applied the relevant statutory provisions, we remanded to the zoning
authority for "renewed consideration" under the appropriate standard. 513 N.W.2d 460,
463 (Minn. 1994).
21
Similarly, in Stadsvold, we remanded a variance application to the county board
because the board applied the wrong standard:
The Board, using an "adequate hardship" standard, did not consider
practical difficulties. The Stadsvolds argue the Board's decision was
therefore arbitrary and capricious. The Board did not have the benefit of our
holding in this case regarding "practical difficulties." We cannot tell
whether the Board's decision was arbitrary and capricious. Therefore,
remand is required to allow the Board to consider the Stadsvolds' variance
application in light of our holding that applications for area variances are to
be considered using the "practical difficulties" standard in Minn. Stat.
9394.27, subd. 7.
Stadsvold, 754 N.W.2d at 332. Our precedent therefore supports the conclusion that a
property owner is entitled to have his or her variance application heard under the correct
legal standard, which supports a remand in this case. A remand is particularly
appropriate in this case because a property owner seeking to utilize her property should
not be penalized due to the City's application of the wrong legal standard. We reverse
and remand the matter to the City for renewed consideration of Liebeler's variance
request in light of our rejection of the "reasonable manner" standard from Rowell.
Reversed and remanded.
DIETZEN, J., took no part in the consideration or decision of this case.
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