Zoning and variances loosen up – 2011 Legislative change sets aside Krummenacher decision

17 May

In Minnesota, zoning and variance issues have been far more challenging for those seeking a variance since 2010, when the Minnesota Supreme Court (in Krummenacher v. City of Minnetonka) determined that zoning variances would only be allowed where the applicant has no other reasonable use of the property, without the variance.  Consequently fairly “routine’ requests for variances to improve a property through expansion, obtaining an exception from limitations on use, and the like were difficult to come by.

Since the Krummenacher case, cities and municipalities have effectively had their hands tied, with respect to what variances they could allow, and they have had little to no flexibility in considering case-by-case circumstances, as the standard articulated by the Supreme Court was quite onerous.  Prior to that case, the standard for variances was whether the proposed use was one which would be “reasonable”, even if such use was not allowed by the existing ordinance.  Obviously that offers far more flexibility.

The good news for those seeking variances and for the cities and municipalities managing the process is that flexibility has been interjected back into the process, via a new statute which was signed into law May 5th.  The new law (H.F. No. 52, final engrossment found here: https://www.revisor.mn.gov/laws/?id=19&year=2011&type=0) allows for variances when an applicant can demonstrate “practical difficulties” in  complying with the official control.  The “practical difficulties” standard requires that the owner proposes to use the proeprty in a reasonable manner, the plight of the landowner sis due to circumstances unique to the property not created by the landowner, and that the variance (if granted) will not alter the essential character of the locality.  (See Minn. Stat. Sec. 394.27, subd. 7, 2011).

A significant benefit of this new law, which went into effect immediately upon Governor Dayton signing it, is that real estate projects, construction efforts and developments that were halted due to the inability to obtain a variance may now be able to resume.  If you had placed your own development or construction project on hold, for fear of not being able to obtain a variance post Krummenacher, it may now be worth contacting your attorney to see if it is time to revisit that issue.

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This blog entry is written by Brad Boyd, a Shareholder at Thomsen Nybeck. Brad is the chair of the firm’s Transactional Group, and his practice focuses primarily in Real Estate, Real Estate Brokerage, Business and Corporate law, and Wind Energy Law.  Brad provides legal advice, guidance, and representation related to risk management in a wide variety of real estate and business law matters.  He is counsel to the Minnesota Association of Realtors, many individual Realtors and brokerages, business clients and individuals.

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