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GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A. ATTORNEYS ATLAW <br />3400 CITY CENTER <br />33 SOUTH SIXTH STREET <br />MINNEAPOLIS, MN 55402-3796 <br /> <br />612 343-280O <br />FAX: 612 333-0066 <br />www.gpmlaw.com <br /> <br />MEMORANDUM <br /> <br />TO: <br /> <br />Michele McPherson <br /> <br />FROM: Peter Beck <br /> <br />Mike Jones Application for Variance <br /> <br />DATE: March 6, 2002 <br /> <br /> This memorandum is in response to the Council's inquiry as to whether it is <br />feasible to approve the above-requested variance on condition that, if the applicant's <br />efforts to vegetate and maintain the hill are not successful, then a retaining wall will be <br />built. <br /> <br /> Minnesota Statutes, Section 462.357, subd. 6(2) provides that the council "may <br />impose conditions in the granting of variances to insure compliance and to protect <br />adjacent properties". The Minnesota Court of Appeals has interpreted this provision as <br />follows, "Implicit to this limitation is that the conditions assigned to the variance must <br />have a nexus to the improvements for which the building variance was granted". City of <br />Maplewood v. Valiukas, No. CO-96-1468, February 11, 1997. <br /> <br /> In my opinion, a condition which requires the installation of a retaining wall in <br />the event that revegetation of the hill is not successful would protect adjacent properties <br />and have a nexus to the improvement for which the variance is requested. However, I <br />would caution the Council to be very clear in terms of what the condition is and what will <br />be required to meet the terms of the condition. I would also suggest that a Council <br />resolution approving the variance and imposing the condition be signed and agreed to by <br />the landowner and recorded against the property. Attached is a draft resolution for your <br />consideration as a starting point. <br /> <br />GP:872566 v 1 <br /> <br /> <br />