2021-03-23 Planning Commission Workshop Meeting Agenda PacketCITY OF MENDOTA HEIGHTS
PLANNING COMMISSION – WORKSHOP MEETING
AGENDA
March 23, 2021 – 7:00 pm
(Virtual / WebEx Meeting Only)
MN Stat. 13D.021 - Meeting by telephone or other electronic means: Conditions - MN stat. 13D.021 provides that a
meeting of a public body may be conducted via telephone or other electronic means if meeting in a public location is
not practical or prudent because of a health pandemic or declared emergency.
At its meeting on March 17, 2020, the Mendota Heights City Council declared a local emergency due to the COVID-19
pandemic. As a part of this action, and until further notice all Planning Commission meetings will be held by telephone
or through other electronic means, with social distancing measures in place. All public meetings will continue to follow
the requirements of the Minnesota Open Meeting Law.
Note that all of the members of the Planning Commission will be participating in this Workshop meeting remotely.
Interested individuals may access the meeting by using the meeting connection information below. By accessing this
meeting with the a dial-in option, attendees will only be able to listen to the meeting, while the micro-phone line will
be muted with no public comments allowed.
Public Attendance is available via toll free phone: 1-(312) 535-8110; Meeting Access Code: 133 273 0057 # #
Note that long-distance telephone charges may apply.
PLANNING COMMISSION – WORKSHOP MEETING
AGENDA
March 23, 2021 – 7:00 pm
1.Call to Order / Roll Call
2.Planning Commission Orientation - and - Discussion with City Attorneys of
Land Use Application Process and Case Studies
3.Adjourn Meeting
Planning Commission Memo
DATE: March 18, 2021
TO: Chair Field and Mendota Heights Planning Commission
FROM: Tim Benetti, Community Development Director
SUBJECT: Planning Commission Workshop Meeting
Instead of a regular meeting, the city has scheduled a Planning Commission Workshop Meeting for
Tuesday, March 23, 2021, at 7:00 PM. This meeting will be entirely virtual, so all commissioners
can attend and participate from the comfort of your own home or private office. City Hall-Council
Chambers will not be open, and this workshop will not be televised. The general public however,
will be allowed to dial a toll free number and listen-in only.
This workshop is intended to serve as an orientation for the new commissioners and a “refresher” of
sorts for the tenured/experienced commissioners. City Attorney Elliott Knetsch and Joel Jamnik, both
with Campbell-Knutson Law will be the facilitators of this workshop meeting, and will present
information regarding variance legislation, rules and processes; and lead the discussion or answer
questions on variances and other land use decision-making matters.
Included with this memo is a Planning Commission Orientation and Training manual created by
Campbell-Knutson, plus a memo from their firm detailing some legal case studies regarding unique
variance actions in other communities. Please be sure to have the manual and study memo available
during your workshop, as these will likely be referenced during their presentation.
If you have any specific questions or issues you want the city attorney to address or discuss during
the workshop, please email them to me by next 12:00 Noon, Monday, March 22nd, so we can give
Mr. Knetsch and Mr. Jamnik adequate time to research and prepare answers prior to the workshop.
The city is also providing the booklet The Job of the Planning Commissioner by Albert Solnit (note:
the book cover appears to be misprinted or cut-off on top, and as such, these books were offered at a
reduced price, while the main body of text is fine). Commissioners should read and keep this book
while you serve on the commission. Should you resign or term-out of the commission, we ask that
you return this book to the city for the new or in-coming commissioner.
City staff is also considering or planning to host another joint City Council-Planning Commission
workshop meeting later this year. More information or updates will be forthcoming.
Please let me know if you are unable to attend this meeting next Tuesday night. Remember, send
your questions/issues prior to the meeting to Tim Benetti at timb@mendota-heights.com. Thank you.
City of Mendota Heights
Planning Commission
Orientation and Training
February, 2021
Contact: Elliott B. Knetsch
Grand Oak Office Center I
860 Blue Gentian Road, Suite 290
Eagan, Minnesota 55121
Telephone: (651) 452-5000
Email: eknetsch@ck-law.com
www.ck-law.com
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Table of Contents
1. Municipal Authority to Plan ................................................................................................1
2. Executing and Implementing the Comprehensive Plan .......................................................2
3. Zoning ..................................................................................................................................4
4.Conditional Use Permits ......................................................................................................7
5. Rezoning ..............................................................................................................................8
6.Variances............................................................................................................................10
7. Subdivisions .......................................................................................................................12
8.Time Limits ........................................................................................................................14
9. Takings ...............................................................................................................................15
10. Public Discretion in the Land Use Process ........................................................................16
11.Pending Litigation ..............................................................................................................17
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1.MUNICIPAL AUTHORITY TO PLAN
A.Municipal Land Use Planning Act.
This Act provides the authority and uniform procedures for conducting and implementing
municipal planning for all cities. The Act was adopted by the legislature in 1965. Comprehensive
plans and zoning ordinances must comply with both the substantive and procedural requirements
under the Act.
B.Metropolitan Land Use Planning Act.
Cities in the seven-county area are also empowered and governed by the Metropolitan Land
Use Planning Act. This, unlike the Municipal Land Use Planning Act, requires adoption of a
Comprehensive Plan before a zoning ordinance may be adopted or amended. These requirements
do not apply outside of the seven-county metro area.
1.Policy. The Metropolitan Land Use Planning Act is based on the following stated policy:
coordinated land use plans, controls and programs are necessary to facilitate orderly
development and for the general welfare of the public, since metropolitan area local units
of government are interdependent, and problems of urbanization and development
transcend local boundaries.
2.Comprehensive Municipal Plans Required. Under the Act, each local unit of government
is required to adopt a Comp Plan that must be approved by the Metropolitan Council.
3.Compliance with Met Council Plans. Comp Plans must comply with the various plans of
the Met Council covering such issues as:
a.Transportation;
b.Parks;
c.Sanitary Sewer Systems.
4.Prohibition Against Adoption of Inconsistent Official Controls. Once in place, the Met
Land Planning Act prohibits cities from adopting official controls that conflict with the
Comp Plan. Until 1985, the statute was silent on the required relationship between the
comprehensive plan and zoning ordinance, but under court decisions, the zoning
ordinance would supersede the Comp Plan in the event of a conflict between the two.
However, in 1997 the legislature amended the relevant statutes to require conflicting
ordinances to be “consistent” with the Comp Plan. State law also requires that when the
plan is amended, zoning ordinances and other official controls must be amended within
nine months so as not to conflict.
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2. EXECUTING AND IMPLEMENTING THE COMPREHENSIVE
PLAN
A. Comprehensive Municipal Plan.
The Comprehensive Municipal Plan is defined by statute as:
a compilation of policy statements, goals, standards, and maps for guiding the
physical, social and economic development, both private and public of the
municipality and its environs and may include, but is not limited to, the
following:
i. statements of policies, goals, standards,
ii. a land use plan, including proposed densities for development,
iii. a community facilities plan,
iv. a transportation plan, and
v. recommendations for plan execution.
A comprehensive plan represents the planning agency's recommendations or visions
for future development in the community.
B. Purpose.
The statute recognizes that the development of land is not merely a private venture,
but a partnership with the public: the landowner provides the private land (as well as the
capital to develop it) and the public agrees to provide access to properly maintained roads,
highways, sanitary sewer, treatment, water supply, stormwater management systems, parks
and recreation, police and fire protection, and other public functions. Because the public has
such a great stake in the ongoing cost of serving private land, the legislature has granted
communities the ability to plan for development and make sure that the public’s costs will be
manageable in the future.
C. Tools.
Any plan is only as good as its execution. The most common effective tools to accomplish
execution are:
1. Zoning;
2. Subdivision Regulations;
3. Official Street Maps;
4. Building Regulations;
5. Capital Improvement Budgeting.
These Tools are also called "Official Controls," which term is defined under the Municipal
Land Planning Act as:
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ordinances and regulations which control the physical development of a city, county,
or town or any part thereof or any detail thereof and implement the general objectives
of the comprehensive plan. Official controls may include ordinances establishing
zoning, subdivision controls, site plan regulations, sanitary codes, building codes and
official maps.
The most recognizable component of the Comprehensive Plan is the Land Use Plan.
This plan identifies various areas of the community as being guided for various types of land
use, including land needed for public uses. Other sections of the plan would include
transportation and community facilities plans, stormwater plans, sanitary sewer plans, etc.
D. Procedure.
1. Adoption and Amendment of Comp Plan. Occurs in 1 of the following ways:
a. Planning Commission recommends a plan to the Council;
b. Council proposes the plan to the Planning Commission; or
c. Landowner applies for amendment to the comp plan.
2. Notice and Public Hearing Requirements.
3. Recommendation by Planning Commission.
a. The Council cannot adopt or amend without review and recommendation by the
Planning Commission; OR
b. 60 days have elapsed since resolution submitting the Plan to Planning Commission.
4. Recommendation by Planning Commission Requires Majority Vote. Final decision by
Council to adopt or amend requires 2/3 vote.
E. Goals and Policies.
Perhaps the most important chapter of the Comprehensive Plan is the statements of Goals
and Policies of the community. Defines what is meant by all the rest of the text and maps that
comprise the Plan document. In considering development proposals, the Planning Commission and
City Council should be able to identify specific goal or policy statements that they believe are
accomplished by the proposed project. A project that does not reflect the goals and policies should
either be denied or the comprehensive plan should be reviewed for possible amendment to reflect
the project.
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3. ZONING
A. Purpose.
Zoning establishes a land use pattern and the orderly development of various types of districts
according to the best use of particular areas of a community. Zoning ordinances may be enacted for
the general purposes of preserving and protecting the public health, safety, morals and general
welfare. Zoning is the most commonly used technique in implementing the goals and policies of the
Comprehensive Plan. It is the legal means to ensure that the goals of the Comprehensive Plan are
carried out. Provided by statute under the Municipal Land Planning Act, Minn. Stat. § 462.351-.365.
B. Examples of Zoning Regulations.
The basic land use controls of the City are found in its zoning ordinance, which regulates
among other things:
• The location, height, bulk, number of stories, size of buildings and other structure;
• The percentage of lot which may be occupied, the size of yards and other open spaces;
• The density and distribution of population;
• The uses of buildings and structures for trade, industry, residence, recreation, public
activities, or other purposes;
• The uses of land for trade, industry, residence, recreation, agriculture, forestry, soil
conservation, water supply conservation, conservation, conservation of shorelands, access
to direct sunlight for solar energy systems, flood control or other purposes, and may
establish standards and may establish procedures regulating such uses;
C. Zoning Map & Zoning Districts
Zoning ordinances may divide the city into districts or zones of suitable numbers, shape and
area. The zoning map will identify the boundaries of the various zoning use districts. The zoning
regulations may vary across different districts, but within each district the regulations must be uniform
for each class or kind of building, structure, land or use.
D. Procedure for Adopting/Amending Zoning Ordinances.
1. Similar to Amendments of the Comp Plan. The Planning Commission may submit
proposed ordinances to the Council at any time.
2. Studies. After conducting studies to ascertain that the official controls or regulations
necessary to implement the Comp Plan, the Planning Commission submits the proposed
zoning ordinance to the Council.
3. Notice and Public Hearing Requirements. After new zoning ordinances or amendments
to existing ones have been proposed, the Planning Commission must hold at least 1 public
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hearing. Notice of the public hearing must be published at least 10 days prior to the
hearing date. Mailed notice to affected property owners may also be required.
4. Revisions. Following the public hearing, the Planning Commission reviews the proposed
zoning ordinance or amendment in light of information received at the public hearing and
makes any appropriate and reasonable revisions.
5. Submission to Council. The Planning Commission then presents the zoning ordinance or
amendment in final draft form along with a report to the Council.
6. Publication. After the Council adopts new zoning ordinances or amendments, the Council
must publish or summarize them in the official newspaper.
E. Land Uses
1. Permitted Uses.
a. Defined as uses that property owners have a right to engage in as provided within
the zoning district.
b. No discretion to deny. It is generally arbitrary and unlawful to deny a building
permit for a permitted use, unless the zoning is subsequently changed to prohibit the
use.
c. Normally there is no review by either the Planning Commission or the Council.
Rather, the applicant merely applies for a building permit with supporting
documentation that the use is permitted.
2. Accessory Uses. Defined as those uses that cannot stand alone and must be accompanied
by a principal use.
3. Conditional Uses. Defined as uses permitted in a zoning district under the zoning
ordinance, if certain conditions, designated by the Council or specified in the zoning
ordinance, are met.
4. Uses Which Are Not Permitted In Zoning District.
a. In order for a use to be allowed in a specific zone or use district, it must be listed as a
permitted or conditional use in the zoning ordinance, or must be similar enough to
such a listed use so as to be included by City staff, Planning Commission or Council
interpretation or by application of common sense. (e.g. medical clinic includes a
dental clinic but not a veterinary clinic)
b. No Use Variance May Be Granted.
c. Applicant Options. If the use is neither permitted or a conditional use in the zone or
use district, the applicant can:
i) apply for a rezoning to a zone or use district in which it is a permitted or
conditional use; OR
ii) request that the City amend its zoning ordinance to allow the use as a permitted or
conditional use in the zoning or use district where the property is located.
5. Interim Uses. An interim use is a temporary use of property until a certain date or until
the use is no longer permitted. The intent is to allow a use for limited period of time that
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reasonably utilizes the property when the use contemplated under the comprehensive plan
is not currently reasonable and to allow a use that while currently acceptable, may be
unacceptable in light of future anticipated development. Authority of an interim use must
be provided for in the zoning ordinance where conditions for the use are also specified.
Often interim uses are used for mining activities or agricultural activities in a developing
area.
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4. CONDITIONAL USE PERMITS
A. Definition.
A type of land use in a particular district which is presumed to be allowed, but requires
special, additional standards and review due to the existence of some aspect of the use which may
create a nuisance or place an extraordinary burden on public services. By far, the most commonly
litigated zoning matter.
B. Notice and Hearing.
State law requires a public hearing preceded by notice.
C. Limited Discretion.
The City's discretion is limited in the case of an application for a conditional use permit.
The City must grant the CUP if the applicant has satisfied all the conditions. Neighborhood
opposition alone is an insufficient basis for a denial. CUPs are the most commonly litigated zoning
matter and Cities lose challenges to a CUP decision more than any other land use approval.
D. Quasi-Judicial Decision Making.
In denying or approving a CUP, a City is exercising quasi-judicial decision-making, in
which it is applying specific standards set by the zoning ordinance. This should be contrasted with
City legislative decisions, in which the City is engaged in forming public policy, such as the
adoption of a comp plan or zoning ordinance. While the courts tend to give great deference to the
City when it is acting in its legislative capacity in crafting public policy, the courts give substantially
less deference to the City when it exercises quasi-judicial decision-making, e.g. where the public
policy has already been established under the zoning ordinance and the inquiry focuses on whether
the proposed use is contrary to the general welfare as established in the Zoning Ordinance. Courts
tend to think that they can apply the criteria set forth in the zoning ordinance to a particular use, just
as well as the City can.
E. Nexus Requirement.
Courts require that any conditions placed on the conditional use permit to be issued must
have a direct connection or a nexus between the problem identified and the condition required as the
cure. The need for the conditions must be supported by evidence in the record.
F. Time Limits.
Time limits, or “sunset provisions,” are not permissible. If a time limit is determined to be
necessary, then the use should be identified as an interim use, not a conditional use. A conditional
use permit runs with the land forever, regardless of a change in landowner. A CUP need not be
“renewed.” CUPs remain in effect for as long as the conditions are observed.
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5. REZONING
A. Initiation of Rezoning.
Cities have the authority to rezone or grant changes in the zoning designation of a particular
portion of property within the City. The rezoning may be initiated by:
1. Planning Commission;
2. Council; or
3. Petition by an Individual Landowner.
Where a rezoning is not initiated by the Planning Commission, it must be referred to the Planning
Commission for study and report prior to adoption.
B. Rezoning By Legislative Act.
1. Rational Basis. As for an initial zoning of property, the City’s decision concerning a
rezoning must be reasonable and have some rational basis relating to public health, safety,
morals, or general welfare. If a decision on a rezoning is challenged in a court of law, the
court will typically defer to the legislative decision-making of the Council. The body
making the land-use decision should make explicit written findings demonstrating that it
considered both sides of the issue and explaining why it made the decision. A decision
on a rezoning is unlikely to be overturned by the courts, provided it is not inconsistent
with the City’s comprehensive plan.
2. Basis for Rezoning. A rezoning should be justified by a mistake in the original zoning or
a change in the character of the neighborhood to the extent that it is no longer possible
under current restrictions for the property to be put to reasonable use.
3. Consistent With Comprehensive Plan. The rezoning must be consistent with the Comp
Plan.
C. Types of Rezoning.
Zoning amendments are made in one of two categories: (1) Amendments to the text of the
City’s Zoning Ordinance, which apply generally to all properties; and (2) Amendments to the City’s
zoning map, which applies to specific property. The City’s zoning ordinance will include a section
which establishes the process for adopting a zoning amendment, including the process and the
standard for evaluating the merits of the proposed change.
D. Rezoning Decisions and Challenges to a Rezoning Decision.
1. Standards. The standards for considering the rezoning are specific, and do not include
details of a particular development scheme. It is not permissible to approve rezonings
with conditions. Common rezoning considerations are:
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a. Traffic levels capable of being handled on existing roadways;
b. Utility demands capable of being served with existing utility capacity;
c. Land use compatibility with adjoining property;
d. Consistency with Land Use guide plan;
e. Environmental concerns (air, soil, water) and potential hazards to the public;
f. Impacts on schools, parks or open space.
2. Refusal to Rezone. In the event of a refusal to rezone, a landowner typically challenges:
a. Denial of the landowner's request to rezone property from one classification to the
requested classification, e.g. residential to commercial or industrial.
b. City's refusal to amend its zoning ordinance to add a use for the classification, which
is not already a permitted or conditional use.
3. Downzoning. This is the rezoning of property from one classification to a different
classification, usually one allowing less intensive uses, which normally then prohibits a
use the landowner desires and may result in a diminution in value of the property.
4. Planned Unit Developments. A planned unit development is a zoning device which, if
approved by the City, may allow modifications of the performance standards, e.g.
setbacks, lot widths and sizes, without the need for variances as part of an approved plan.
E. Procedural Requirements.
1. Voting. Rezoning land from commercial or industrial to residential requires a simple
majority. Rezoning land from residential to commercial or industrial requires the super
majority or 2/3 vote of the council for enactment.
2. Ordinance. All zoning amendments, whether to zoning text or zoning map, require
adoption by ordinance, preceded by the statutorily required notices and hearing.
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6. VARIANCES
A. Definition.
A variance is a request to use property in a way not generally permitted by the zoning
ordinance, but which may be allowed by the City in special cases only, e.g., by varying one or more
of the performance standards, such as lot area, setbacks, lot width or depth.
B. Practical Difficulties
In granting a variance there is a statutory test of "practical difficulties" which must be met.
"Practical difficulties" means 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 do not constitute a practical
difficulty if reasonable use for the property exists under the terms of the ordinance.
The factors for consideration under the “practical difficulties” standard include: (1) how
substantial the variation is in relation to the requirement; (2) the effect the variance would have on
government services; (3) whether the variance will effect a substantial change in the character of the
neighborhood or will be a substantial detriment to neighboring properties; (4) whether the practical
difficulty can be alleviated by a feasible method other than a variance; (5) how the practical
difficulty occurred, including whether the landowner created the need for the variance; and (6)
whether, in light of all of the above factors, allowing the variance will serve the interests of justice.
C. Considerations.
The primary considerations for variance review under the City’s Ordinance are as follows:
1. The property owner proposes to use the property in a reasonable manner. In making this
finding, the city will evaluate whether the strict interpretation or enforcement of this
subchapter would deprive the applicant of rights commonly enjoyed by other properties
in the same district or whether granting the variance will confer on the applicant any
special privilege that is denied by this chapter to owners of other lands, structures or
buildings in the same zoning district.
2. The plight of the landowner is due to circumstances unique to the property not created by
the landowner. In making this finding, the city will evaluate whether there are exceptional
or extraordinary circumstances or conditions applicable to the property, use or facilities
that do not apply generally to other properties in the same district or vicinity as a result of
lot size or shape, topography or other circumstances over which the owner of property
since the enactment of this chapter has had no control and which do not result from the
actions of the applicant.
3. The variance, if granted, will not alter the essential character of the locality. In making
this finding, the city will analyze the effect of the proposed use on the city and
neighborhood to its satisfaction that granting the variance will not adversely affect the
public health, welfare and safety to other residents and will not be detrimental or injurious
to property or improvements in the neighborhood.
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4. The variance shall only be approved and the proposed use permitted when they are in
harmony with the general purposes and intent of this subchapter and consistent with the
comprehensive plan. In making this finding, the city will evaluate whether the variance
would in any way be contrary to the intent or purpose of the ordinance or inconsistent
with the comprehensive plan, and whether the variance applied for is the minimum
variance necessary to alleviate the practical difficulty of the applicant.
It is important to note that each of these standards must be met in order to qualify for variance
consideration.
D. Discretion in Granting or Denying a Variance.
1. Broad discretion is permitted when denying a request for a variance, but there must be a
legally sufficient reason for denial. Written findings of fact should be prepared and
adopted concerning the reasons for denial or approval and the facts upon which the
decisions is based, based on the statutory requirements.
2. The decision cannot be arbitrary.
3. A variance is typically required only where there has been an unlawful taking of property,
demonstrated by the landowner's inability to put the land to any beneficial use unless the
variance is granted.
4. Applicant bears the heavy burden to show that a variance is necessary.
5. Variances are not permitted for a use not permitted under the ordinance for property in the
zone where the affected land is located.
E. Problems.
The approval/denial of variances is often considered one of the greatest land use problems
faced by local officials. While some cities strictly adhere to their official controls, granting
variances in only those situations required by law, some cities are very liberal in granting variances.
The problem arises when a city planning commission and council do not agree on the instances
appropriate for granting/denial of a variance. If a City has numerous variance applications, it may
be that the City is known for granting variances, or that a change in the City’s official control on a
particular performance standard should be reviewed for modification. Ideally, it is better to change
an official control to reflect the standard set by the City, rather than to continually grant variances to
a standard that is not adhered to.
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7. SUBDIVISIONS
A. Authority.
Cities are granted the authority to regulate subdivisions of land under the Municipal Land
Use Planning Act to:
1. protect the general welfare;
2. encourage orderly development;
3. provide for affordable housing; and
4. facilitate the adequate provision of transportation, sewer and water, stormwater
drainage, schools, parks and other public services.
B. Subdivision Regulations.
1. What They Govern. Subdivision regulations govern the size, location, grading
improvements and similar matters when a tract of land under single ownership is divided
into two or more lots and when the creation of streets and other utilities to service future
development is necessary.
2. Consistency with Zoning and Comp Plan. Subdivision regulations must require that
future development be consistent with zoning ordinances and may require consistency
with the Comp Plan.
3. The Act specifies the platting regulations, which the council may adopt.
4. Procedural Matters. The subdivision regulations must contain the procedural matters,
such as:
a. what is required in the application;
b. the preliminary and final review process
c. coordination with other affected political subdivisions and state agencies (e.g. any
County, DNR permits, approvals or fees required
5. Review process may be delegated to the Planning Commission, but the Council is
responsible for final approval/disapproval. Great flexibility is given in the City's review
process.
6. Notice and Public Hearing. A public hearing is required, preceded by 10 days' notice
published in the official newspaper.
7. Development Agreements. Subdivisions are typically accompanied by a development
agreement between the City and Developer of the subdivision to cover the required special
assessments and proper installation of all improvements.
C. Approval of Subdivision Plats.
A subdivision plat must receive the approval of the City prior to recording with the County.
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1. Dedications. A City may condition subdivision plat approval upon the dedication of a
"reasonable portion" of the subdivision for public streets, sewer, electric, gas, drainage
and water facilities. Legal Pitfall: the dedication required must be in "rough
proportionality" to the impact of the proposed development in both nature and extent.
EXAMPLE: Can't require a dedication of land for an entire City park where the
subdivision is a minor two lot subdivision.
2. Payment In-Lieu of Dedication. A city may require a payment in lieu of such dedication.
A cash equivalent for parks, open space or wetlands.
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8. TIME LIMITS
A. 60 Day Rule.
The legislature enacted an ordinance limiting the time in which a local unit of
government has to act upon certain land use related applications. Within 60 days of submittal of
an application, cities are required to:
1. issue or deny zoning permits; and
2. to approve or deny other land use related applications, such as septic systems and
MUSA expansion petitions.
If cities do not act within the 60 day limit, the request is deemed approved. This section does not
apply to subdivisions applications, which operate under a separate timeframe of 120 days for
approval of a preliminary plat and 60 days to review and approve a final plat (Minn. Stat. §
462.358).
B. Incomplete Application.
The 60 days does not begin to run until the application is complete, but the determination
that an application is incomplete must be made within 15 days of its submission by written notice to
the applicant or the 60 day period will begin regardless of the incomplete application.
C. Extensions.
1. Automatic 60-Day Extension. Within the 60-day period, an automatic extension of no
more than 60 days can be obtained by providing the applicant written notice of the reason
for the extension and specifying the additional time needed.
2. Applicant Approval. Other extensions are available only with the applicant's written
approval.
D. Denials in Writing.
If a City denies a land use request, it must state in writing the reasons for the denial at the
time of the denial or at the next meeting (provided it is within the 60 day time-period). It must also
state the reasons for denial on the record and provide the applicant a written statement of the reasons
for the denial. The written statement must be consistent with the reasons stated in the record.
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9. TAKINGS
A. Prohibition.
The taking of private property without just compensation is prohibited by both the federal
and state constitutions. Regulations on property may be considered takings if they got too far.
B. Federal Takings Law.
1. Categorical takings, in which the regulation "denies all economically beneficial or
productive use of land, e.g. older residential property with small lot size that is
unbuildable due to zoning requirements concerning minimum lot sizes.
2. Case-specific takings, which involve consideration of the economic impact of the
regulation, the interference with reasonable investment-backed expectation and
the character of the regulation.
C. Minnesota Takings Law.
1. Includes the foregoing.
2. A regulation that is enacted for the benefit of a governmental enterprise. The
government must compensate the landowners whose property has suffered a
substantial and measurable decline in market value as a result of the regulation
(e.g. airport zoning and noise impact).
D. Examples.
1. Zoning Text or Text Amendment. A zoning ordinance that is so restrictive as to
deny property owners reasonable use of their property. Owner may recover
money
2. CUPs/Subdivisions.
a. No taking occurs where there is an "essential nexus" between the condition
that is imposed on a permit or development proposal and the burden on the
community/city proposed by the use or development.
b. Cities must prove that any conditions or regulations in the form of land
dedications or easements are in "rough proportionality" to the impact of the
proposed development in both nature and extent.
3. Rezoning. Rezoning does not constitute taking unless is deprives a landowner of
all reasonable use of property.
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10. PUBLIC DISCRETION IN THE LAND USE PROCESS
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21. PENDING LITIGATION
When there is pending litigation against the city, it is important for City Council to consult with
the attorney handling it. The attorney will keep Council advised for the status of any pending
litigation, and if an opportunity to settle a lawsuit arises, the attorney will keep the Council
apprised.
Minnesota law does permit the City Council to close a meeting to the public when the City
Council needs to consult with the attorney representing the city. It is critical that all members of
Council keep the information discussed with the attorney confidential. Ultimately, the City
Council will have the authority to approve or reject any proposed settlement.
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M E M O R A N D U M
TO: MENDOTA HEIGHTS PLANNING COMMISSION
FROM: ELLIOTT KNETSCH AND SHANA CONKLIN, CITY ATTORNEYS
DATE: MARCH 12, 2021
RE: VARIANCE TRAINING MATERIALS: CASE STUDIES
The purpose of this Memorandum is to present case studies in which an appellate court reviewed
a City’s grant or denial of a variance. Please keep in mind that Minnesota’s statutory test for
granting a variance was changed from “undue hardship” to “practical difficulties” in 2011. Two
of the case studies included predate that change, but many of the factors the Court considered are
the same. Therefore, it is still helpful to review the Court’s reasoning.
Variance Standard: Practical Difficulties
Variances may be granted when:
1. The variance is in harmony with general intent and purpose of the ordinance.
2. The variance is consistent with the comprehensive plan.
3. Applicant establishes that there are practical difficulties with complying with the
zoning ordinance. Minn. Stat. 462.357, subd. 6(2). Practical difficulties mean:
a. Reasonable Use. Property owner proposes to use the property in a
reasonable manner not permitted by the zoning ordinance;
b. Circumstances Unique to Property. The plight of the landowner is due to
circumstances unique to the property not created by the landowner; and
c. Essential Character. The variance, if granted, will not alter the essential
character of the locality.
4. Economic considerations alone do not constitute practical difficulties.
5. Neighborhood opposition, by itself, is not a sufficient reason to deny a variance;
however, neighbors can offer facts that are relevant to the factors. See RDNT, LLC,
v. City of Bloomington, A13-0310 (Minn. Ct. App. March 18, 2015) (unpublished).
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FIRST CASE STUDY
Case: Tulien v. City of Minneapolis, A20-0542 (Minn. Ct. App. Jan. 11, 2021) (unpublished).
Brief Facts: A developer proposed building a six-story, mixed-use office and residential
apartment building. The project deviated from the height, size, and layout zoning requirements of
the High Density Office Residence District (OR2) district where the building was to be
constructed. Yellow Tree submitted several applications to deviate from those zoning
requirements, including seven variances and a conditional use permit (CUP) to exceed the
building height limit for the property. The City ultimately granted the variance applications.
Holding: The Court found that the City acted in an unreasonable, arbitrary, and capricious
manner when it granted the variances because it “failed to find any legally sufficient practical
difficulties to support its decisions.”
Court’s Analysis of Variance Factors: For this decision, the Court only focused on the legal
insufficiency of the City’s practical difficulty finding about the “circumstances unique to the
property.”
City Finding: “The current zoning code . . . makes it difficult to create a
contemporary building on this site.”
Circumstances Unique to Property: This means features or characteristics of the
property or its surroundings that are unique. The findings must explain “how those
circumstances make it difficult for the property owner to conform their proposed use
to the zoning requirement.”
Court Analysis: The Court held that the City’s finding was not actually about a
feature or characteristic of the property. Rather, it is just “circular reasoning”
because all variances pertain to situations where the zoning code prevents the
proposed use.
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SECOND CASE STUDY
Case: Nolan v. City of Eden Prairie, 610 N.W.2d 697, 702 (Minn. Ct. App. 2000), review
denied (Minn. July 25, 2000).
Brief Facts: A developer proposed a preliminary plat that included variance applications to
deviate from the setbacks and lot lines that were required by the zoning code. In this case, the
City had previously granted variances in 1989. The variances proposed by this developer in 1999
actually brought the property in closer compliance with the zoning code, even though the
proposal still required variances.
Holding: The Court found that the City acted in a reasonable manner and upheld the granting of
the variances.
Court’s Analysis of Variance Factors
1) Reasonable Use of Property
City Findings:
8. The Preliminary Plat contains an improvement in the setback for Lot 1, which under
the Preliminary Plat is 100 feet from the shoreland, whereas under the 1989 plat, it was
80 feet.
9. The Preliminary Plat contains an improvement in the setback for Lot 2, which under
the Preliminary Plat is 75 feet from the shoreland, whereas under the 1989 plat, it was 40
feet.
10. Under the Preliminary Plat, the house pad on Lot 1 is moved 20 feet to the south to
save vegetation next to the adjacent property.
11. The new drain fields provided for in the Preliminary Plat are further from the lake
than under the 1989 plan. All three lots in the Preliminary Plat meet the 100 foot setback
to the drain fields, whereas, only one of the lots met the requirement under the 1989 plan.
12. Under the Preliminary Plat, two of the three lots meet the requirement of frontage on
a public street, whereas, under the 1989 plan, only one of the lots met that requirement.
13. Under the Preliminary Plat, two of the three lots meet the 150 foot lot width at the
ordinary high water mark and the third lot is 145 feet at the ordinary high water mark
requiring a variance of five feet. Under the 1989 plat, two of the three lots also met the
requirement, but the third lot was only 80 feet at the ordinary high water mark.
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Court Analysis: The Court evaluated the reasonableness of the variances requested
against the fact that the City had previously granted variances in 1989. The newer
variances (in 1999) brought the property “closer to compliances with the conditions
allowed by the official controls.” This helped established that the variances were
reasonable because they kept within the “spirit and intent of the ordinance.”
2) Circumstances Unique to Property
City Findings:
15. The property presents unique circumstances in that there is difficulty in creating
house pads and lot lines because the property is located at the terminus of a cul-de-sac.
16. The property further presents unique circumstances in that it is characterized by a
stand of trees and a grade change from 896 feet to 856 feet, representing a grade change
of 44 feet.
Court Analysis: City made a legally sufficient finding of practical difficulties when it
explained that the property's location at the end of a cul-de-sac, as well as the stand of
trees and significant grade change of 44 feet on the property, limited the owner's ability
to create house pads and lot lines in compliance with the zoning code.
3) Essential Character
City Finding:
14. The proposed used of the property is residential, in keeping with the character of the
area. The three lots in the Preliminary Plat will have as much or greater shoreland than
homes in the surrounding area.
Court Analysis: City made a legally sufficient finding that granting the variance would
not alter the essential character of the locality. In this case, the variance permitted a
smaller lot size. The average lot size in the neighborhood is 1.556 acres, and one lot is
only .62 acres. The court reasoned, “How the one undersized lot significantly alters the
essential character of the neighborhood is not entirely clear. Appellants also protest the
loss of open space, but the 1999 plan preserves as much, if not more, open space than the
prior 1989 plan.”
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THIRD CASE STUDY
Case: State ex rel. Neighbors for E. Bank Livability v. City of Minneapolis, 915 N.W.2d 505,
517-18 (Minn. Ct. App. 2018), review denied (Minn Aug. 7, 2018).
Brief Facts: A developer proposed to build an apartment building that did not fully comply with
the City’s zoning ordinances. The developer applied for a variance for the floor-area ratio of the
proposed project. Floor-area ratio refers to “the total amount of floor area in a building, divided
by the area of the lot.” In the C2 zoning district, the maximum floor-area ratio was 1.7, and the
proposed project had a floor-area ratio of 14.42.
Holding: The Court found that the City acted in a reasonable manner and upheld the granting of
the variance.
Court’s Analysis of Variance Factors
1) Reasonable Use and Essential Character
City Finding: The applicant will use the property in a reasonable manner that is within
the spirit and intent of the comprehensive plan. The proposed use of the property will not
alter the essential character of the locality.
Court Analysis: These factors were not analyzed in detail because the appealing party
did not claim that this was legally insufficient.
2) Circumstances Unique to Property
City Finding: The City found that the property was “located in an activity center
adjacent to a growth center, which is an area encouraged to be high density.”
Furthermore, there were additional findings that the property was contextually unique
because the block contained two other permanent structures: the Pillsbury Library and an
adjacent parking ramp. And these two structures limit the ability of the proposed project
to be built horizontally. These two structures “restricted the proposed project by limiting
the lot size, and this unique situation was not created by the [developer].”
Court Analysis: City made a legally sufficient finding of practical difficulties when it
explained that permanent structures on either side of a proposed apartment building
physically limited the lot size and ability to build horizontally on the property in
compliance with the zoning code. State ex rel. Neighbors for E. Bank Livability v. City of
Minneapolis, 915 N.W.2d 505, 517-18 (Minn. Ct. App. 2018), review denied (Minn.
Aug. 7, 2018). Unique circumstances are “not limited to the purely physical condition of
the land and that such a limitation would make granting of a variance ‘practically
impossible except where the topographic condition of a specific parcel of land would
render the tract of land in question otherwise valueless.” Merriam Park Cmty. Council,
Inc. v. McDonough, 297 Minn. 285, 291 (1973).
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FOURTH CASE STUDY
Case: Sagstetter v. City of St. Paul, 529 N.W.2d 488 (Minn. Ct. App. 1995)
Brief Facts: A City sought a variance to permit the construction of a domed softball field to
allow for year-round activities. A variance was required because the height of the dome
exceeded the allowable height in the zoning code.
Holding: The Court found that the City acted in a reasonable manner and upheld the granting of
the variances.
Court’s Analysis of Variance Factors
1) Reasonable Use of Property
City Findings: Placing a dome over the field to enable year-round use is a reasonable use
of the property. The design of the project helps “ameliorate local problems by adding
parking spaces, concession facilities, and public restrooms.”
Court Analysis: This is a reasonable proposed use of the property. The appellant argued
that if the property can be “put to any reasonable use, then granting a variance is
unreasonable.” The Court rejected that reasoning and indicated that the language means
“that the landowner would like to put the land to a reasonable use, but that the proposed
reasonable use is prohibited under the strict provisions of the code.” Rowell v. Bd. of
Adjustment¸446 N.W.2d 917, 922 (Minn. Ct. App. 1989), pet. for rev. denied (Minn. Dec
15, 1989).
2) Circumstances Unique to Property
City Findings: Soil conditions and a sewer main prevented excavation from taking place
that would have allowed the Project to comply with the 30 foot height limitation in the
ordinance.
Court Analysis: This is a legally sufficient finding. It was based on evidence presented
regarding the soil conditions and the sewer main. The court also indicated that the proposed
plan alleviated parking problems. The court found that the unique conditions justified the
variance.
3) Essential Character
City Finding: The proposed variance will not impair an adequate supply of light and air
to adjacent property, nor will it alter the essential character of the surrounding area or
unreasonably diminish established property values within the surrounding area.
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Court Analysis: City made a legally sufficient finding that granting the variance would
not alter the essential character of the locality. The City Council found that the dome
“with an average height of 35 feet, but a height at its peak of 90 feet,” would not unduly
interfere with light or air. A diagram showed that the edge of the dome would be 49 feet
from the nearest structure. The nearest structures were garages and apartments. The Court
acknowledged that there was a presentation that nearby property values would be
diminished but deferred to the City’s finding that the properties values would not be
diminished.
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