6.4. HANDOUTS 08-16-2010 - Laserfiche WebLink

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considering a variance request is limited to evaluating how the variance application meets the statutory undue hardship factors. Residents can often provide important facts that may help the city in addressing these factors, but unsubstantiated opinions and reactions to a request do not form a legitimate basis for a variance decision. If neighborhood opinion is a significant basis for the variance decision, the decision could be overturned by a court. What is the role of past practice? While past practice may be instructive, it cannot replace the need for analysis of all three of the undue hardship factors for each and every variance request. In evaluating a variance request, cities are not generally bound by decisions made for prior variance requests. If a city finds that it is issuing many variances to a particular zoning standard, the city should consider the possibility of amending the ordinance to change the standard. When should a variance decision be made? A written request for a variance is subject to Minnesota's 60-day rule and must be approved or denied within 60 days of the time it is submitted to the city. A city may extend the time period for an additional 60 days, but only if it does so in writing before expiration of the initial 60-day period Under the 60-day rule, failure to approve or deny a request within the statutory time period is deemed an approval. For more information, see Minn. Stat. ~ 15.99. How should a city document a variance decision? Whatever the decision, a city should create a record that will support it. In the case of a variance denial, the 60-day rule requires that the reasons for the denial be put in writing. Even when the variance is approved, the city should create or direct that a written statement explaining the decision. The written statement should explain the variance decision, address each of the three undue hardship factors and list the relevant facts and conclusions as to each factor. Can meeting minutes adequately document a variance decision? If a variance in denied, the 60-day rule requires a written statement of the reasons for denial be provided to the applicant within the statutory time period. While meeting minutes may document the reasons for denial, usually a separate written statement will need to be provided to the applicant in order to meet the statutory deadline. A separate written statement is advisable even for a variance approval, although meeting minutes could serve as adequate documentation, provided they include detail about the decision factors and not just a record indicating an approval motion passed. Can a city attach conditions to a variance? By law, a city may impose conditions when it grants variances to insure compliance and to protect adjacent properties. Any such conditions should relate back to the subject of the variance request. For instance, if a variance is granted to exceed an otherwise applicable height limit, any conditions attached should presumably relate to mitigating the affect of excess height. For more information, see Minn. Stat. ~ 462.357. What happens to the variance once granted?