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HomeMy WebLinkAbout5.A.1. Text Admendment for Variances-Ord. No. 8475s 1 1 CITY OF SHAKOPEE , (, 71 Memorandum U , 1 CASE NO.: 11 -005 TO: Mayor and City Council Mark McNeill, City Administrator FROM: Julie Klima, Planner It SUBJECT: Text Amendment for Variances MEETING DATE: June 21, 2011 REVIEW PERIOD: Proposal initiated by City staff INTRODUCTION Staff has prepared a text amendment regarding the provisions in City Code addressing variances. A recent State Supreme Court decision regarding variances has caused the State Legislature to enact new language regarding variances. Staff has proposed a text amendment that will revise City Code language to comply with the recently adopted revisions to State Statute. Additionally, staff is proposing a change to City Code to require that approved variances be recorded with Scott County. This change is proposed in order to provide notice and documentation of the approved variance to subsequent property owners The Planning Commission reviewed the proposed text amendment at its June 9 meeting and recommended approval of the amendment to the City Council. A copy of the Planning Commission report is attached for the Council's reference, which includes criteria and draft findings. This item is related to Goal F: Housekeeping. ALTERNATIVES 1. Approve the text amendment as presented. 2. Approve the text amendment with revisions. 3. Deny the text amendment. 4. Table action on this item and direct staff to prepare additional information. STAFF RECOMMENDATION Staff recommends Alternative No. 1, approval of the text amendment, as presented. ACTION REQUESTED Approve Ordinance No. 847, An Ordinance Amending Chapter I I Regarding Variances, as presented, and move its adoption. j' r j (�` E lr Iy lie Klima Planner II li:\cc \2011 \06 -21 \11 005 variance text amendment.docx Chapter 19 - Revisor of Statutes, \/1LL 1 of 2 rr 'CiY418 )T A � Minnesota Session Laws Search Key: (1) language fe be deleted (2) new language 2011, Regular Session This document represents the act as presented to the governor. The version passed by the legislature is the final engrossment. It does not represent the official 2011 session law, which will be available here summer 2011. CHAPTER 19-- H.F.No. 52 An act relating to local government; providing for variances from city, county, and town zoning controls and ordinances;amending Minnesota Statutes 2010, sections 394.27, subdivision 7; 462.357, subdivision 6. BE IT ENACTED BY THE LEGISLATURE. OF THE STATE OF MINNESOTA: Section 1. Minnesota Statutes 2010, section 394.27, subdivision 7, is amended to read: Subd. 7. Variances; har-dshi � practical difficulties The board of adjustment shall have the exclusive power to order the issuance of variances from the tunas requirements of any official control including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control iii eases wh eft r ea l diffi s o r ar t:,., lar hardship in th way of eaff5 to th s t f i e t lotto of Offi I and when th e terms ei the vffianee variances are consistent with the comprehensive plan. "Hffds *" as iise d a a Variances may be granted when the applicant for the variance establishes that there are ,practical difficulties in complying with the official control "Practical difficulties." as used in connection with the granting of a variance means that the property owner proposes to use the property in a reasonable manner not permitted by an official control; 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. Economic considerations alone shall do not constitute a hardship if ° reasei able iise f or - >, pr i u the terffis o the a' practical difficulties. Practical difficulties include but are not limited to inadequate access to direct sunlight for solar energy systems Variances shall be granted for earth sheltered construction as defined in section 216C.06, subdivision 14, when in harmony with the official controls. No variance may be granted that would allow any use that is prohibited not allowed in the zoning district in which the subject property is located. The board of adjustment may impose conditions in the granting of variances to A condition must be directly related to and must bear a rough proportionality to the impact created by the variance insure- ;T~ https: / /www. revisor .mn.gov /laws / ?id =19 &doetype= chapter &year =2011 &type =0 6/3/2011 Chapter 19 - Revisor of Statutes Page 2 of 2 Z EFFECTIVE DATE.This section is effective the day following final enactment. Sec. 2. Minnesota Statutes 2010, section 462.357, subdivision 6, is amended to read: Subd. 6. Appeals and adjustments. Appeals to the board of appeals and adjustments may be taken by any affected person upon compliance with any reasonable conditions imposed by the zoning ordinance. The board of appeals and adjustments has the following powers with respect to the zoning ordinance: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative officer in the enforcement of the zoning ordinance. (2) To hear requests for variances from the litePal __ is ers of the era:r ane u th e ty k i que eann b „t ie a reasen if i ed , „ 7,. Pan ditiofiq al lov x e d by the ecl,.:..' eei4fals requirements of the zoning ordinance including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the ordinance and when the variances are consistent with the comprehensive plan Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by the zoning ordinance: 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. Economic considerations alone shall do not constitute an undue h if a b e u for- the e p re pert e :etr , a pr *lip, Ae ordinailee 1 h a4so Meluaes practical difficulties. Practical difficulties include but is are not limited to, inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth sheltered construction as defined in section 216C.06, subdivision 14, when in harmony with the ordinance. The board of appeals and adjustments or the governing body as the case may be, may not permit as a variance any use that is not permitted allowed under the zoning ordinance for property in the zone where the affected person's land is located. The board or governing body as the case may be, may permit as a variance the temporary use of a one family dwelling as a two family dwelling. The board or governing body as the case may be may impose conditions in the granting of variances to "" and to Ote,.t aE' aoen preperti A condition must be directly related to and must bear a rough proportionality to the impact created by the variance. EFFECTIVE DATE This section is effective the day following final enactment. Presented to the governor May 2, 2011 Signed by the governor May 5, 2Q 11, 3:03 p.m. https: / /www. revisor .mn.gov /laws / ?id= 19 &doctype= chapter &year= 2011 &type = 6/3/2011 CITY OF SHAKOPEE Memorandum TO: Shakopee Planning Commission FROM: Julie Klima, Planner II RE: Text Amendment Regarding Variances DATE: June 9, 2011 CASELOG NO: 11 -005 The State Legislature recently revised State Statute regarding variances. The Governor has signed the revised legislation thus making it effective on May 6, 2011. The revised legislation stems from a recent State Supreme Court case Krummenacher v. City of Minnetonka. In its ruling on Krummenacher v. City of Minnetonka, the Court interpreted the statutory definition of "undue hardship" and found that the "reasonable use' portion of the language relating to undue hardship is not whether the proposed use is reasonable, but rather whether there is a reasonable use in the absence of the variance. Essentially, the Courts defined the language in the same way that the City of Shakopee has been applying it in the recent past. However, since not all municipalities were operating in this manner, the Legislature has revised the statute to restore city variance authority. Please find attached Exhibit A which provides additional information on the Krummenacher case and the new language signed into law. Previous State Statute language regarding variances was as follows: "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. The language recently signed into law by the Governor deletes the previous paragraph and replaces it with the following: "Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control. "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by an official control; 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." Staff is initiating the following text amendment in order to bring City Code language into compliance with the State Statutes regarding variances. The language that follows is the current language from City Code Section 11.89 regarding variances. Language that is underlined is proposed for addition. Language that is struelcthreugh is proposed for deletion. Section 11.89, Subd. 2. Criteria for Granting Variances. A variance from the literal �~ s o f the Chapte requirements of the zoning ordinance may be granted where the following circumstances are found to exist: A. When the applicant for the variance establishes that there are practical difficulties in complying with the official control. Practical difficulties The etriet P rifefeeffie nt of means the following: 1. The property owner proposes to use the property in a reasonable manner not permitted by an official control in question t be p t.. nable„ if u under r 2. The plight of the landowner is due to circumstances unique to the property; 3. The circumstances were not created by the landowner; 4. The variance, if granted, will not alter the essential character of the locality; and 5. The problems extend beyond economic considerations. Economic considerations do not constitute an undu hardship practical difficulties if nWe lase for the pro e 'et B. It has been demonstrated that a variance as requested will be in keeping with th ...,;,at - affi d ' t o f this Chapter harmony with the eg neral purposes and intent of the ordinance and when the variance as requested is consistent with the Comprehensive Plan. C. The request is not for a use variance. D. Conditions to be imposed by the Board of Adjustment and Appeals will e eempliaaee and to protee� the adjaeent properties must be directly related to and must bear a rough proportionality to the impact created by the variance Additionally, planning staff recently attended a workshop relating to current planning issues. Variances and their overall implementation were discussed as a part of the workshop. The presenters at this workshop highly recommended that all variances be recorded against the property which they are granted. Currently, City Code includes language stating that variances will not be recorded. Staff agrees with the position of the professionals presenting at the workshop, that it would be helpful and beneficial, particularly to subsequent property owners, if variance were to be recorded against the property which they are issued to. As a result staff is proposing the following change. Language which is struekfihieugh s proposed for deletion. Language which is underlined is proposed for addition. Section 11.89, Subd. 8. Recording. A copy of the variance shall be maintained in the City's records but hall Rat-and shall also be required to recorded at the Scott County Recorder's office. FINDINGS City Code Sec. 11.83, Subd. 3 provide the criteria required for the granting of a Zoning Ordinance Amendment. Only one of the criteria needs to exist for an amendment to be warranted. These criteria are listed below with proposed findings for the Commission's consideration. Criteria #1 That the original Zoning Ordinance is in error; Finding 41 The original zoning ordinance is not in error. Criteria #2 That significant changes in community goals and policies have taken place; Finding #2 Significant changes in community goals andpolicies have not taken place that mandate the requested zoning amendment. Changes in Minnesota State Statute require that the language in the Zoning Ordinance be revised so as to be compliant with State Statute. Furthermore, recording of variances will ensure that subsequent property owners are informed of approvals affecting their property(ies). Criteria #3 That significant changes in City-wide or neighborhood development patterns have occurred; or Finding 43 Significant changes in City-wide or neighborhood development patterns have not occurred. Changes in State Statute governing variances require the changes to the zoning ordinance. Recording of variances will document development rights granted to property owners. Criteria #4 That the comprehensive plan requires a different provision. Finding 44 The Comprehensive Plan does not require a different provision. ALTERNATIVES 1. Recommend approval of the proposed text amendment to the City Council, as presented. 2. Recommend approval of the proposed text amendment to the City Council, with revisions. 3. Recommend denial of the proposed text amendment. 4. Continue the public hearing and request additional information from staff. STAFF RECOMMENDATION Staff recommends that the Planning Commission recommend approval of the proposed text amendment to the City Council, as presented. ACTION REQUESTED Offer a motion to recommend approval of the presented, and move its adoption. text amendment to the City Council as h: \boaa- pe\2011 \06- 09Wariance text amendment 11- 005.doex II ORDINANCE NO. 847, FOURTH SERIES AN ORDINANCE OF THE CITY OF SHAKOPEE, MINNESOTA, AMENDING CHAPTER 11 (ZONING) REGARDING VARIANCES THE CITY COUNCIL OF THE CITY OF SHAKOPEE, MINNESOTA, ORDAINS: Section 1 — That City Code Chapter 11 (Zoning) is amended to add the language as follows: Language which is underlined shall be added. Language which is stna°'� be deleted. Changes are limited to Section 11.89, Subd. 2, Items A through D. No other sections of the Ordinance shall be modified with these changes. Section 11.89, Subd. 2. Criteria for Granting Variances. A variance from the literal pr s of 4} C hapte requirements of the zoning ordinance may be granted where the following circumstances are found to exist: A. When the applicant for the variance establishes that there are practical difficulties in complying with the official control. Practical difficulties The strict enforcement o f th ordinaffee Y hardshi beeffase of eifeumstanees unique to th in r r 4y u nder ° s id er - ,. .t:. r r„a„° hardship means the following: 1. The property owner proposes to use the property in a reasonable manner not permitted by an official control i question cannot ° put to a reasonable use if used under eopAitieiis allowed by the official eentrols; 2. The plight of the landowner is due to circumstances unique to the property; 3. The circumstances were not created by the landowner; 4. The variance, if granted, will not alter the essential character of the locality; and 5. The problems extend beyond economic considerations. Economic considerations alone do not constitute an undue rap ctical difficulties if reasonable lase for the pfapert , exists undo: the temas of the ordinance. B. It has been demonstrated that a variance as requested will be in keeping w ith the spkA an a :,,t °.,t of thi Chapt . harmony with the general purposes and intent of the ordinance and when the variance as requested is consistent with the Comprehensive Plan. C. The request is not for a use variance. D. Conditions to be imposed by the Board of Adjustment and Appeals will iRsufe must be directly related to and must bear a rough proportionality to the impact created by the variance Section 11.89, Subd. 8. Recording. A copy of the variance shall be maintained in the City's records b u t shall n et and shall also be required to be recorded at the Scott County Recorder's Office or the Scott County Registrar of Titles Office. Section 2. Effective Date. This ordinance shall be in effect from and after the date of its passage and publication. Adopted in session of the City Council of the City of Shakopee, Minnesota held this day of 2011. John J. Schmitt, Mayor ATTEST: Jeanette Shaner, Deputy City Clerk Published in the Shakopee Valley News on the day of 2011.