SECTION 1206.01  GENERAL PROVISIONS AND STANDARDS: 

25A. Purpose.  The purpose of this Section is to provide for deviations from the literal provisions of   this   Ordinance   in   instances   where   compliance   with   the requirements of this Ordinance would cause practical difficulties because of circumstances unique to the individual property under consideration, and to grant such  variances  only  when  the  proposed  variance  would  permit  the  property owner to use the property in a reasonable manner and when it is demonstrated that the variance will not alter the essential character of the locality.

B. The City Council shall serve as the Board of Adjustment and Appeals.

C. Review Criteria:  Conditions governing considerations of both regular and minor variance requests:

1. In considering all requests for a variance and in taking subsequent action, the Planning Commission and the Council shall make a finding of fact that the proposed action will not:

a. Impair an adequate supply of light and air to adjacent property. b. Unreasonably increase the congestion in the public street.

c. Have  the  effect  of  allowing  any  district  uses  prohibited  therein, permit a lesser degree of flood protection than the flood protection elevation for the particular  area,  or  permit  standards  which  are lower than those required by State law.

d. Increase the danger of fire or endanger the public safety.

e. Unreasonably diminish or impair established property values within the neighborhood, or in any way be contrary to the intent of this Title.

f. Violate the intent and purpose of the Comprehensive Plan. g. Violate any of the terms or conditions of Item 2, below.

25 2. A variance from the terms of this Ordinance shall not be granted unless it can be demonstrated that:

a. Practical difficulties will result if the variance is denied due to the existence of special conditions and circumstances which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same district. 

(1) Special conditions may include exceptional topographic or water conditions or, in the case of an existing lot or parcel of record, narrowness, shallowness, insufficient area or shape of the property.

(2) Practical difficulties caused by the special conditions and circumstances may not be solely economic in nature, if a reasonable use of the property exists under the terms of this Title.

(3) Special  conditions  and  circumstances  causing  practical difficulties shall not be a result of lot size or building location when the lot qualifies as a buildable parcel.

b. Compliance  with  the  requirements  of  the  provisions  of  this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Ordinance or deny the applicant the ability to put the property in question to a reasonable use and the proposed variance permits the owner to use the property in a reasonable manner.

c. The  special  conditions  and  circumstances  causing  the  practical difficulties do not result from the actions of the applicant. 

d. Granting the variance requested will not confer on the applicant any special privilege that is denied by this Ordinance to other lands, structures or buildings in the same district under the same conditions. 

e. The request is not a use variance. 

f. The  variance  requested  is  the  minimum  variance  necessary  to accomplish the intended purpose of the applicant. 

g. The  request  does  not  create  an  inconvenience  to  neighboring properties and uses.

h. The variance requested is in harmony with the purpose and intent of the Ordinance.

i. The variance requested is consistent with the Comprehensive Plan. j. The variance requested will not alter the essential character of the

locality. 

3. Application for a variance  shall  set  forth  reasons  that  the  variance  is justified in order to make reasonable use of the land, structure or building. 

25 4.  Should the Council find that the conditions outlined heretofore apply to the proposed lot or parcel, the Council may grant a variance from compliance with the requirements of this Ordinance so as to relieve such practical difficulties to the degree considered reasonable, provided such relief may be granted without impairing the intent of this Ordinance. The Planning Commission, in the case of major variance, based upon a report and recommendation by the City staff, shall have the power to advise and recommend such conditions related to the variance regarding the location, structure, or use as it may deem advisable in the interest of the intent and purpose of this Ordinance provided that they are directly related to and bear a rough proportionality to the impact of the variance. The City Council may recommend such conditions related to the variance regarding the location, structure, or use as it may deem advisable in the interest of the intent and purpose of this Ordinance provided that they are directly related to and bear a rough proportionality to the impact of the variance.

 

SECTION 1206.02  PROCEDURES:    Pursuant to Minnesota Statutes 15.99, as may be amended, an application for a variance shall be approved or denied within sixty (60) days from the date of its official and complete submission unless notice of extension is provided by the City or a time waiver is granted by the applicant.   If applicable, processing of the application through required state or federal agencies shall extend the review and decision-making period an additional sixty (60) days unless this limitation is waived by the applicant.  Additional City requirements are as follows:

A. Minor Variances:

1. Purpose. The purpose of this Section is to provide for an expeditious method of processing variance requests.

2. Qualifications.  Requests qualifying as minor variances must meet one of the following criteria.

25 a. Cases where practical difficulties to existing buildings or platted property are created as a result of public action or change in City Code standards (exception: shoreland or floodplain regulations).

b. Structure or setback deviations which are characteristics of and common to neighboring uses and which do not exceed five (5) feet.

3. Processing.

9 18   a. Requests for a minor variance shall be filed with the City Planner on an   official   application   form.      Such   application   shall   be accompanied by a fee as established by Council resolution.  Such application shall also be accompanied by five (5) large scale copies and one (1) reduced (11" x 17") copy of detailed written and graphic materials necessary for the explanation of the request.  The request for  minor  variance  shall  be  placed  on  the  agenda  of  the  first possible City Council meeting occurring thirty (30) days after the date of application submission.  The request shall be considered as being officially submitted when all the information requirements are complied with.

b. The City Planner serving as the planning agency representative shall instruct the appropriate staff persons to prepare technical reports when appropriate and shall provide general assistance in preparing a recommendation on the action to the Council.

c. Written notice describing the request and date of consideration of the minor variance request by the City Council shall be mailed to immediately abutting property owners at least ten (10) days in advance of the meeting at which said matter is to be addressed. 

d. For  properties  within  the  Shoreland  and/or  Floodway  or  Flood Fringe Overlay District, the City shall submit to the Commissioner of Natural Resources a copy of the application for proposed variances sufficiently in advance so that the Commissioner will receive at least ten (10) days' notice of the City Council meeting where it is to be heard.

e. The City Staff and the  City  Council  shall  have  the  authority  to request additional information from the applicant to retain expert testimony with the consent and at the expense of the applicant, said information to be declared necessary to evaluate the request and/or  to  establish  performance  conditions  in  relation  to  all pertinent sections of this Ordinance.  Failure of any applicant to supply all necessary supportive information may be grounds for denial of the request. 

8 f. The Council shall review the application and may upon its option conduct a public hearing on the request.  If a public hearing is conducted  on  the  request,  written  notice  shall  be  provided  to property owners within one thousand (1,000) feet of the boundary of the property in question (public right-of-way shall not be included in  the one thousand (1,000) foot measurement).  The City Planner shall   have   the   right   to   provide   additional   property   owners notification beyond the one thousand (1,000) foot distance if it is judged that the request will have impact upon additional properties. The City Council may also make a determination and require that the matter be processed as a regular variance.

 g. The applicant or a representative shall appear before the Council in order to answer questions concerning the proposed variance request.

 9 h.  Approval of a minor variance from this Ordinance shall be by three of five (3 of 5) votes of the entire City Council.

i. All decisions by the Council involving a variance request shall be final except that an aggrieved person or persons shall have the right to appeal within thirty (30) days of the decision to the Dakota County District Court.

j. A  copy of all decisions  granting  variances  for  properties  in  the Shoreland, Floodway or Flood Fringe shall be forwarded to the Commissioner of Natural Resources within ten (10) days of such action.

B. Regular Variances:

1. Classification.  All variances which are not classified as "minor" shall be deemed "regular" variances.

2. Processing.

9 18 a. Request for variances, as provided within this Title, shall be filed with the City Planner on an official application form.   Such application shall be accompanied by a fee as provided for by City Council Resolution.  Such application shall also be accompanied by five (5) large scale copies and one (1) reduced (11" x 17") copy of detailed written and graphic materials fully explaining the proposed change, development, or use.    The request for variance shall be placed on the agenda of the first possible Planning Commission meeting occurring after thirty (30) days after the date of submission of the application.   The request shall be considered as being officially submitted when all the information requirements are complied with.

8 b. Upon receipt of said application, the City  shall set a public hearing following property hearing notification as applicable.  The Planning Commission shall conduct the hearing, and reports its findings and make recommendations to the City Council.  Notice of said hearing shall consist of a legal property description of request, and be published in the official newspaper at least ten (10) days prior to the hearing and written notification of said hearing shall be mailed at least ten (10) days prior to all owners of land within one thousand (1,000) feet of the boundary of the property in question (public right- of-way shall not be included in the one thousand (1,000) foot measurement). The City Planner shall have the right to provide additional property owners notification beyond the one thousand (1,000) foot distance if it is judged that the request will have impact upon additional properties.  The City Assessors records shall be deemed sufficient for determining the location and ownership of said property.  A copy of the notice and a list of the property owners and addresses to which the notice was sent shall be attested and made a part of the records of the proceeding.

c. For  properties  within  the  Shoreland,  Floodway  or  Flood  Fringe Overlay  District,  the  City  shall  submit  to  the  Commissioner  of Natural Resources a copy of the application for proposed variances sufficiently in advance so that the Commissioner will receive at least ten (10) day's notice of the hearing.

d. Failure  of  a  property  owner  to  receive  said  notice  shall  not invalidate any such proceedings as set forth within this Ordinance provided a bona fide attempt has been made to comply with the notice requirements of this Section.

e. The  City  Planner  shall  instruct  the  appropriate  staff  persons  to prepare technical reports where appropriate, and provide general assistance in preparing a recommendation on the action to the Council.

f. The Planning Commission and City staff shall have the authority to request additional   information   from   the   applicant   concerning operational factors or to retain expert testimony with the consent and at the expense of the applicant concerning operational factors, said information to be declared necessary to establish performance conditions in relation to all pertinent sections of this Ordinance. Failure of   an   applicant   to   supply   all   necessary   supportive information may be grounds for denial of the request.

g. The  applicant  or  representative  thereof  shall  appear  before  the Planning Commission   to   answer   questions   concerning   the proposed variance.

9 h.  The   Planning   Commission   shall   make   findings   of   fact   and recommend approval or denial of the request.   The Planning Commission shall reach a decision on the request within a period of time sufficient to allow a decision to be made within the time requirements of Section 1206.02 (Procedures), unless a delay in action is   requested   by   the   applicant.      The   Commission's recommendation and the City staff's report shall be presented to the Council.

9 i. The City Council shall not grant a variance until they have received a report and recommendation from the Planning Commission.  If, however, the Planning Commission has not acted upon the request after thirty (30) days from the first regular meeting at which the request was considered, the City Council may proceed with its consideration and action on the request.

j. Upon receiving the report and  recommendation of the Planning Commission, the City shall place the report and recommendations on the agenda for the next regular City Council meeting.  Such reports and recommendations shall be entered in and made part of the permanent written record of the City Council meeting. 

k. The  Council  shall  review  the  application  and  may  at  its  option conduct a public hearing on the request. 

l. A variance of this Ordinance shall be by three of five (3 of 5) votes of the entire City Council.

m. All decisions by the Council involving a variance request shall be final except that an aggrieved person or persons shall have the right to appeal within thirty (30) days of the decision to the Dakota County District Court.

n. A  copy of all decisions  granting  variances  for  properties  in  the Shoreland, Floodway or Flood Fringe shall be forwarded to the Commissioner of Natural Resources within ten (10) days of such action.

o. Whenever a variance has been considered and denied by the City Council, a similar application and proposal for the variance affecting the same property shall not be considered again by the Planning Commission or City Council for at least one (1) year from the date of its denial, except as follows:

(1) If the applicant or property owner can clearly demonstrate that the circumstances surrounding the previous variance application have changed significantly.

(2) If the City Council decides to reconsider such matter by a vote of not less than three of five (3 of 5).

p. If a request for a variance receives approval of the City Council, the applicant shall record such with the County Recorder within thirty (30) days of the City Council approval date.   The applicant, immediately upon recording such, or as soon as is reasonably possible, shall furnish the City proof of recording.   No building permits for the property in question will be granted until such proof of recording is furnished to the City.

 

SECTION 1206.03  LAPSE OF VARIANCE:

A. Unless the City Council specifically approves a different time when action is officially taken on the request, the variance shall become null and void twelve (12) months after the date of approval, unless the property owner or applicant has substantially started the construction of any building, structure, addition or alteration, or use requested as part of the variance.  The property owner or applicant shall have the right to submit an application for time extension in accordance with this section.

B. An application to extend the approval of a variance shall be submitted to the City Planner not less than thirty (30) days before the expiration of said approval. Such an application shall state the facts of the request, showing a good faith attempt to utilize the permit, and it shall state the additional time being requested to begin the proposed construction.  The application shall be heard and decided by the City Council prior to the lapse of approval of the original request.

C. In making its determination on whether an applicant has made a good faith attempt to utilize the variance, the City Council shall consider such factors as the type, design and size of the proposed construction, any applicable restrictions on financing, or special and/or unique circumstances beyond the control of the applicant which have caused the delay. 

 

SECTION 1206.04  PERFORMANCE SECURITY:

A. Upon approval of a variance, the City shall be provided, when deemed necessary by the City Council, with a letter of credit or other form of security determined acceptable by the City Council, upon recommendation by the City Attorney.  Said security shall be provided to the City prior to the issuing of building permits or initiation of work on the proposed improvement or development.   Said security shall cover performance stipulation imposed by the City Council as may be applicable, and shall be non-cancelable and shall guarantee conformance and compliance with the conditions of the variance and ordinances of the City.

B. The security shall be in the amount equal to one hundred twenty-five (125) percent of the City Engineer's or Building Official's estimated costs of labor and materials for the proposed improvements or development. 

C. The City shall hold the security until completion of the proposed improvements or development and a certificate of occupancy indicating compliance with the variance and City Code provisions has been issued by the Building Official. 

D. Failure to comply with the conditions of the variance or appeal and City Code provisions shall result in forfeiture of the security. 

E. Whenever a performance guarantee is imposed by the City, the applicant shall be required to enter into a performance agreement with the City.  This agreement is to provide authorization to the City to utilize the posted security and complete stipulated work should the applicant fail to meet the terms and conditions of the permit.  Said agreement shall hold harmless the City for completion of the work and address other matters as may be determined by the City Attorney.