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Freeze on variances?

Thanks to a lawsuit and court decision, it just got a lot more difficult to get a variance in Detroit Lakes.

In the case Krummenacher vs. City of Minnetonka, the neighbor of someone who was granted a variance challenged that variance, won, and changed the way of granting variances for every city throughout the state.

"The Supreme Court ruled that the city used the wrong standard for determining hardship," Community Development Director Larry Remmen said. "

In years prior, also established by prior court cases, it was said that if the requested variance was a reasonable use of the property, the city had the ability to grant the variance if it so desired.

But now, under state statute 462.357 sub. 6, the Supreme Court ruled the term "undue hardship" wasn't being interpreted properly by cities and that the variance applicant "must establish that the property in question cannot be put to a reasonable use without the variance."

Detroit Lakes City Attorney Bill Briggs said in a letter that, "The question is not whether the use resulting from granting the variance will be a reasonable use, as it may (have) been in the past. Instead, the question is now whether the property, in the absence of a variance, can be put to reasonable use."

"It's quite clearly a 180-degree turn from what the courts have interpreted it in the past," Remmen said.

So in other words, if the property owner requesting the variance can build something on the land without the variance, it should not be granted.

"Based on the court's decision, it will be rare that any variance can be approved," Briggs explained in his letter to the city.

In an article published by the League of Minnesota Cities, there are four "responses" cities should consider. They should re-evaluate criteria when deciding to grant a variance or not; if granting the variance, the city should be absolutely sure the variance is necessary; re-examine zoning codes; and cities have greater flexibility in existing permits and setback regulations.

"It is anticipated that the league will support a legislative change to provide cities with greater flexibility -- perhaps something similar to the county authority," the article states.

So until the courts reinterpret the law or the legislature writes a new law, cities will have to follow the court's guidelines.

Now Detroit Lakes officials are trying to help businesses and individuals with valid hardships to get variances.

Remmen said the city is trying to find a solution that's not so restrictive and find a way to "accommodate minor modifications that make sense and don't create any problems for the neighboring properties, and still allow some flexibility in some of these cases."

A prime example, he said, is a business trying to expand and in need of a variance for a few feet of setback from a property line. Without a variance, the business maybe would have to redesign the addition, or even be forced to relocate.

At last week's city council meeting, Alderman Bruce Imholte asked what the penalty would be to the city if it continues to grant variances as in the past.

Briggs said that while there isn't a specific punishment, the city could get involved in litigation if someone sues the city over granting a variance.

Also, the city's reputation is at stake -- it does not want to be perceived as one that doesn't follow follows the law.

"I think we're going to take some positive steps to be flexible where we can be on that issue," Remmen said. "We'd like to see a little more flexibility or ability to make those decisions and have the state law amended to reflect that. I've got to believe most other cities feel that way, too."