Back to the Sep-Oct 2020 issue

Variances and Nonconformities: Understanding Land Use Terms

By Rachel Carlson and Jed Burkett

A home builder with tools.Land use decisions can feel particularly difficult for city officials, often because of the personal dimension. While many city decisions — such as property tax rates and new ordinances — apply to the city as a whole, land use decisions often apply to only a few people, usually a single property owner and his or her neighbors. Perhaps this is why such decisions can get so contentious.

Two particularly difficult concepts are variances and nonconforming uses. The more you understand about them the more comfortable you’ll feel making decisions.

Understanding variances

When landowners request a variance, it is usually because they have encountered a problem with a building project. The project they envision does not fit the limits of the land they own. For example, a deck project encroaches on a required setback from neighboring property.

A variance is a way that a city may allow an exception to part of a zoning ordinance. It is a permitted departure from strict enforcement of the ordinance as applied to a particular piece of property. A variance is generally for a dimensional standard (such as setbacks or height limits).

Landowners will sometimes seek a variance to allow for a particular use of their property that would otherwise not be permitted by the city’s zoning ordinance. For example, they would like to run a manufacturing operation in their home garage in an area that is zoned strictly residential.

Such variances are often called “use variances” and are not generally allowed in Minnesota. State law prohibits a city from permitting by variance any use that is not permitted under the ordinance for the zoning district where the property is located.

Three-factor test

Provided that the requested variance is not a use variance, what is the standard the city must use to evaluate the landowner’s application? A variance may be granted if the landowner can satisfy a three-factor “practical difficulties” test. These three factors are:

  • Reasonableness: Will the variance allow the property owner to use the property in a reasonable manner?
  • Uniqueness: Is the variance necessary because of circumstances unique to the property (not caused by the landowner)? For example, does a steep slope prevent usual setbacks?
  • Essential character: Will the variance alter the essential character of the locality? For example, will the resulting structure be out of scale, out of place, or otherwise inconsistent with the surrounding area?

If the applicant does not meet all three factors of the statutory test, then a variance should not be granted. Finally, even if the practical difficulties test is met, variances are only permitted when they are in harmony with the general purposes and intent of the ordinance, and when the terms of the variance are consistent with the comprehensive plan.

Understanding nonconformities

Communities and their land use ordinances change over time. As a result, landowners may find themselves with structures or lots that no longer meet current ordinance requirements. For example, a lake home built in the 1950s might not conform to current setback requirements from the shoreline. These are considered “legal nonconformities.”

Properties with legal nonconformities may be bought and sold, with each new property owner allowed to continue on as before. Property owners may also repair, replace, restore, maintain, and improve their nonconformities. However, expansion is not protected — which is often how nonconformities end up as an issue before city councils.

State statute does not define “expansion,” so many cities choose to define the term in local ordinance. Expansion of a nonconforming use could refer to physical expansion or intensification of use.

An expansion of a nonconforming use is often a chance for the city to bring the use into conformance with current city ordinance — frequently by granting a variance, as discussed above.

When granting a variance (in all circumstances, not only nonconforming uses), conditions may be attached. Conditions must be related to an impact created by the variance. For example, requiring the planting of privacy trees where a setback is encroached upon.

As a city official, making difficult land use decisions can be helped by a familiarity with the law and its requirements. A solid foundation in land use concepts can change what feels like a personal decision about an individual property owner’s request into a formal, factual evaluation of whether or not the property owner meets required legal standards.

Rachel Carlson is loss control manager and Jed Burkett is loss control/land use attorney with the League of Minnesota Cities. Contact Carlson: rcarlson@lmc.org or (651) 281-1210. Contact Burkett: jburkett@lmc.org or (651) 281-1247.