Regulating land use patterns
Zoning is a method of establishing a land use pattern by regulating the way land is used by landowners. A zoning ordinance consists of text and a map. It generally divides a city into various zoning districts and sets standards regulating uses in each district.
A city has broad authority when creating its zoning ordinance, and less when it administers the same ordinance. So, it is important for a city to be aware of what authority it is acting under when making a particular zoning decision.
When adopting or amending a zoning ordinance, a city council exercises so-called “legislative” authority. The council is advancing health, safety, and welfare by making rules that apply throughout the entire community. The council has broad discretion when acting legislatively. A reviewing court will give the city considerable deference for its legislative acts. City councils are ultimately accountable to the voters for legislative decisions.
In contrast, when applying an existing zoning ordinance, a city council exercises so-called “quasi-judicial” authority. The council must determine the facts associated with a particular request, and then apply those facts to the legal standards in the zoning ordinance and relevant state law.
A city council has less discretion when acting quasi-judicially. A reviewing court will examine whether the city council applied rules already in place to the facts before it. In general, if the facts show the applicant meets the relevant legal standard, they are likely entitled to the approval. Variances and conditional use permits are two commonplace zoning tools that are quasi-judicial in nature.
It can be helpful to visualize this as a “pyramid of discretion,” showing cities have the most discretion when making land use decisions at the base of the triangle — such as creating a comprehensive plan, or subdivision and zoning ordinances. A city has less discretion when making quasi-judicial decisions in the middle of the pyramid because the city is limited by the ordinance and law that make up the foundation below.
Variances are an exception to rules laid out in a zoning ordinance. They are permitted departures from strict enforcement of an ordinance provision as applied to a particular piece of property if enforcement would cause “practical difficulties.”
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.
Variances are generally for dimensional standards (such as setbacks or height limits). They cannot allow a use that is prohibited in the particular zoning district. A variance allows the landowner to break a dimensional zoning rule that would otherwise apply.
“Practical difficulties” is a legal standard set forth in state law (Minn. Stat. §. 462.357, sub. 6). Minnesota cities must apply this standard when considering variance applications.
The statute provides for a body called the board of adjustment and appeals to hear requests for variances. In many smaller communities, the planning commission — or even the city council — may serve that function. A variance decision is generally appealable to the city council.
Under this law, a city may grant a variance if the facts satisfy the three-factor test for practical difficulties.
The first factor is that the property owner proposes to use the property in a reasonable manner.
This factor means that the landowner would like to use the property in a particular reasonable way, but cannot do so under the rules of the ordinance. It does not mean that the land cannot be put to any reasonable use whatsoever without the variance.
For example, if the variance application is for a building too close to a lot line, or does not meet the required setback, the focus of the first factor is whether the request to place a building there is reasonable.
The second factor is that the landowner’s plight is due to circumstances unique to the property not caused by the landowner.
The uniqueness generally relates to the physical characteristics of the property; that is, to the land and not personal considerations of the landowner. The statute says economic considerations alone cannot create practical difficulties.
The third factor is that the variance, if granted, will not alter the essential character of the locality.
Under this factor, cities should consider whether the resulting structure will be out of scale, out of place, or otherwise inconsistent with the surrounding area.
If the facts surrounding a variance application satisfy all three statutory factors, then a city may grant the variance.
State statute says variances can only be 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.
So, in addition to the three-factor practical difficulties test, a city evaluating a variance application should make findings on whether or not the variance meets these further requirements.
Whatever the decision on a variance application, a city should carefully consider each of the three factors of the statutory practical difficulties standard. While past practice may be instructive, it cannot replace the need for analysis of all three of the practical difficulties factors for each and every variance request.
If a city issues many variances to a particular zoning standard, it should consider amending the ordinance to change the standard. In other words, if a city consistently allows landowners to break a particular rule, perhaps the need for the rule should be revisited. It could appear that the properties’ plight was not particularly unique, or even that there is not an underlying reasonable basis for the rule.
Cities should also review their zoning ordinance for provisions relating to variances to be sure they are consistent with the state statutory standard for practical difficulties.
Conditional and interim use permits
A conditional use is a use that is generally compatible with a particular zoning district, but — because of hazards inherent in the use itself, or because of special problems that its proposed location may present — the use is allowed by permit only if the special concerns are addressed as set forth in the zoning ordinance.
Conditional use permits are authorized under state law (Minn. Stat. § 462.3595).
Whether to grant or deny a conditional use permit application is a quasi-judicial zoning decision.
The zoning ordinance typically details both the general standards that apply to all conditional uses, and the specific conditions that apply to a particular conditional use in a given zoning district. The conditions must be reasonable and practical.
Unlike a permitted use, which a landowner is generally entitled to as a matter of right, a conditional use is allowed only after a statutorily required public hearing. The council may attach reasonable conditions to a conditional use permit based on factual evidence contained in public record.
City councils sometimes misunderstand the level and the nature of discretion they have when reviewing applications for conditional use permits. The city made the legislative decision about the appropriateness of a kind of use in a zoning district when it adopted the ordinance providing for the use as conditional. So, if a proposed conditional use satisfies the conditional use standards in the zoning ordinance, then generally the landowner is entitled to the conditional use permit.
When considering a conditional use permit application, the city acts in a limited, quasi-judicial role. It must only consider whether the facts of the application satisfy the standards set forth in the ordinance. If the council believes a kind of use is unacceptable in a given zoning district, then it should not list the use as a conditional one in the district in the first instance.
A conditional use permit is a property right that “runs with the land.” That is, it attaches to and benefits the land and is not limited to a particular landowner. State statute says a conditional use permit remains in effect as long as the landowner continues to meet the conditions agreed upon. (Minn. Stat. § 462.3595, subd. 3.)
The attorney general says time limits — such as sunset provisions or automatic annual review to include possible termination — are not consistent with state law, explaining that cities may not enact or enforce ordinance provisions that allow the city to terminate permits without regard to whether the conditions agreed upon are observed. However, a city can revoke a conditional use permit if there is not substantial compliance with conditions, so long as the revocation is based upon factual evidence, after appropriate notice and hearing. (A.G. Op. 59-A-32 (February 27, 1990)).
If a city wishes to place time constraints on particular uses, the appropriate zoning tool is an interim use permit, not a conditional use permit. State law authorizes interim use permits for:
- A temporary use of property until a particular date;
- Until the occurrence of a particular event; or
- Until zoning regulations no longer permit it. ( Stat. § 462.3597)
Cities may wish to employ interim use permits for uses that are not consistent with the city’s long-term plan and vision for the particular area, or where the use itself has a limited lifecycle. The city should provide for interim use permits in its zoning ordinance. Cities must hold a public hearing prior to issuance, and the landowner generally enters into an agreement with the city.
Cities should periodically review their zoning ordinances to determine whether the conditional uses listed are still appropriate for the particular zoning district, and to make sure the conditions under which the uses will be allowed are specifically set forth.
Nonconformities are any land uses, structures, or lots that do not comply with the current zoning ordinance.
Legal nonconformities are those that were legal when the zoning ordinance or amendment was adopted. That is, they complied with then-existing ordinance and law. The rights of legal nonconformities are often called grandfather rights. Legal nonconformities generally have a statutory right to continue unless:
- The use is discontinued for more than one year; or
- The structure is destroyed by more than 50% of its assessed market value, and no building permit is applied for within 180 days.
Legal nonconformities may be continued, including through repair, replacement, restoration, maintenance, or improvement, but may not be expanded (Minn. Stat. § 462.357, sub. 1e..) There is a limitation to the continuance rights for nonconformities in National Flood Insurance Program (NFIP) floodplain areas.
While legal nonconformities have a right to continue without complying with the current zoning ordinance, they must still comply with other city ordinances, such as a nuisance or licensing ordinance.
Illegal nonconformities are those that were not permitted when established. They do not have the rights associated with legal nonconformities. Before assuming a particular nonconformity is entitled to the statutory right to continue, cities should consider whether the nonconformity ever complied with existing ordinance or law.
Historically, the theory behind legal nonconformities was that property would eventually comply with the zoning ordinance. The statutory right to continue was more limited, and cities could phase out nonconformities over time through a process called amortization. Current law prohibits amortization, except for adult uses.
Cities should review their ordinance provisions concerning nonconformities, and make sure they are consistent with the current state statute.
Creating a record
Whatever its zoning decision, a city should create a record to support it. If the city‘s action is challenged, courts will review the decision on the public record. The record must show the city exercised the appropriate level of discretion and applied the relevant standards in a reasonable fashion. It may not matter that the city acted reasonably if the city is unable to prove its actions through the public record.
When creating a record to support a zoning decision, every city should be aware of Minnesota’s 60-day rule (Minn. Stat. § 15.99.). Under state law, a city must either approve or deny a written zoning request within 60 days of the time it is submitted to the city. The 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 this rule, failure to approve or deny a request within the statutory time period is deemed an approval. It is crucial that cities scrutinize applications as they come in to make sure all required information is present, and then process those applications in an expeditious manner.
Holding a public hearing is an important component in developing the record. State law generally requires public hearings before the adoption of any zoning ordinance or amendment, and before the granting of variances, conditional use permits, or re-zonings.
Under state law, the city must publish notice of the time, place, and purpose of the hearing at least 10 days prior to the day of the hearing. If the decision affects an area of five acres or less, the city may need to mail notice to property owners within a 350-foot radius of the land in question. (Minn. Stat. § 462.357, subd. 3.)
Public hearings should include a complete disclosure of what is being proposed, and a fair and open assessment of the issues raised. A public hearing should include an opportunity for the general public and interested parties to:
- Hear and see all the information.
- Ask relevant questions.
- Provide additional information.
- Express support or opposition.
For a smooth public hearing process, it is helpful for the city council to develop a written set of policies and procedures to follow at each public hearing.
Neighborhood opposition can be a challenging issue when considering the merits of a zoning application. Courts find neighborhood opinion alone is not a valid sole basis for a particular city action.
In considering comments, it is helpful to distinguish between the quantity, and the quality, of the comments. For example, the council can rely on well-supported testimony that brings forth relevant facts. On the other hand, the council should not base a decision on unsupported and unsubstantiated emotional opposition to a particular project.
After a public hearing, the city should make findings to support its decision. If the city denies an application related to zoning, Minnesota’s 60-day rule requires the city to put the reasons for a denial in writing and to adopt them within the statutory timeframe. Failure to do this could result in the city council decision being overturned. Even when the application is approved, written findings explaining the decision are advisable.
The written statement is particularly important for quasi-judicial decisions such as variances and conditional use permits. The League of Minnesota Cities recommends the city adopt written findings of fact and conclusions of law whenever a city makes such decisions. The document should identify:
- The relevant legal criteria such as statutory standards or code provisions;
- Explain the relevant facts relating to the particular application; and
- Then apply those facts to the legal criteria.
The document should provide a court with everything needed to uphold the zoning decision.
Zoning decisions can be controversial and confusing, and this memo is by no means a comprehensive discussion of all issues that may arise. When dealing with particular issues, it is important to seek specific legal advice from your city attorney.