Last summer, the Minnesota Supreme Court, in a case entitled Krummenacher v. City of Minnetonka, reversed the City of Minnetonka’s application of a widely-followed standard for approving variances arising under a municipal zoning ordinance. The effect of the ruling was immediate and far-reaching, causing most cities to halt consideration of any variance request and even refusing to accept applications for such relief.

While variances still may be approved under Minnesota law, even in accordance with the Supreme Court’s decision, at least for zoning variances, they are only allowed when the applicant has no other reasonable use of the property in question. So, for example, in the Krummenacher case, the court determined, contrary to the City of Minnetonka, that a request for a variance could not be approved to allow a garage addition in a residential neighborhood because the applicant already had an existing reasonable use of property.

The court contrasted zoning variances arising under municipal statutory authority with those allowed for counties but its decision did not affect the county authority. Nonetheless, Minnesota counties have a higher level of concern about the scope of their authority in this area.

Legislation introduced by Rep. Joyce Peppin (R-Rogers) and Sen. Gen Olson (R-Minnetrista) (HF 52/SF 13) seeks to change the statute in question by establishing a new statutory standard that mimics that which had been widely followed for several decades. It would also change the county version of the variance statute.

Under the proposed legislation, the “undue hardship” standard in current law would be discarded in favor of a new “practical difficulty” standard. Under this standard, a municipality could approve a zoning variance if: (1)the request is consistent with the local comprehensive plan; (2) allows a reasonable use not otherwise prohibited under the municipal zoning ordinance; (3) the circumstances are unique and not created by the applicant; and (4) does not alter the essential character of the surrounding area. The variance could be approved with conditions to avoid adverse impacts on adjacent properties.

The objective of correcting Krummenacher is widely supported by public and private organizations. Having said that, there continues to be disagreement about the precise language needed to fix the statute. Stakeholder groups have been meeting over the last several weeks to resolve their differences. A hearing on the bill is scheduled for this Thursday; it is possible that it may be voted to the floor without a consensus on the language having been achieved. This could have some impact on the timing of floor action and/or consideration of the companion bill in the Senate.

If adopted and signed into law, cities (and counties) would be able to resume processing variances of the sort rejected in the Krummenacher case. When that happens, there may be a flood of applications for variances that had been put on the shelf in light of the Supreme Court’s decision. On the other hand, approval of necessary variances could be the tonic that allows viable projects to proceed, along with construction jobs and economic impact that goes along with them.