You spent your hard-earned money on a lake lot and now you want to build your dream retreat. Unfortunately, you find out you need a variance.
What is a variance? When can it be granted? What conditions may be imposed on a variance to protect adjacent property owners' values and the public interest?
A variance gives people permission to break a zoning ordinance for reasons of exceptional circumstance. Variances can be granted only when they are in harmony with the intent of the ordinance. In Minnesota, granting of variances also depends on determination of undue hardship. Undue hardship, as defined by Minnesota law, requires three conditions.
First, the property can't be put to a reasonable use under conditions of the ordinance. For example, on a substandard lot you should not be granted a variance to build a lake home because the lot still could be used as a picnic site and a place to access the lake. But say a property owner has a 25,000 square foot lot in a municipality where 30,000 square feet are required to build. A variance allowing the owner to build on the lot has a good chance of being granted.
Second, undue hardship also means that your predicament is due to circumstances unique to the property, not something you created. For example, you built a lake cabin on a lot. Now you want to build a garage or an addition that would be closer to the lake than the required setback. You created the dilemma, so a variance might not be granted. But say a small wetland is in the middle of your lot and you want a variance so you can build your cabin closer to the lake than the required setback. Since your predicament is due to the natural character of your lot you might receive a variance.
Third, a variance is granted only if it doesn't alter the essential character of the locality. For example, you want to built a large, tall house on the lake that allows a maximum structural height of 35 feet. If the surrounding houses are mostly single story and less than 35 feet high, it's possible a variance won't be granted since a large, visually dominating structure might alter the character of the area.
All of these criteria must be considered and applied to each variance request, and the burden of establishing undue hardship rests with the person who requests the variance. Under law, economic or financial hardship alone doesn't constitute a hardship.
In addition, a variance cannot be granted that would allow any use prohibited in the zoning district in which the property is located. For example, you cannot get a variance for a commercial use in a residential district that prohibits commercial uses.
The Board of Adjustment grants and denies variance requests. People who serve on these boards deserve our respect. They make difficult, impartial decisions that often are subjective. They must determine the facts, apply the criteria in the ordinance, examine alternatives, consider conditions, make reasonable and objective decisions and document the process. Their decisions have important consequences. Zoning ordinances and their compliance defines a community. When done right they increase the economic and natural resource values of an area.
Gov. Pawlenty's Clean Water Initiative pilot project in the north central lakes area is bringing people together to create an alternative set of shoreland development standards in the lakes area. Citizens working on the project have been discussing possible conditions attached to variances to mitigate water quality impacts of shoreland development and to protect adjacent property values. The updated standards adopted through this project will give local governments an alternative for local ordinances.
Details of the Shoreland Rules Update project are online at www.dnr.state.mn.us/waters. Click on the Governor's Clean Water Initiative link. E-mail comments to firstname.lastname@example.org.
The authors are DNR staffers.
Brainerd Dispatch ©2013. All Rights Reserved.