Pursuant to Minn. Stats. § 15.99, applications shall be approved or denied within 60 days from the date of its official and complete submission, unless extended pursuant to Minn. Stats. § 15.99 by the city or a time waiver is granted by the applicant.

(Code 1970; Code 1992, § 850.04(1))

State Law reference— Deadline for approval or denial of application, Minn. Stats. § 15.99.

The planning commission shall serve as the board of appeals and adjustments created pursuant to Minn. Stats. § 462.354(2).

(Code 1970; Code 1992, § 850.04(2)A)

State Law reference— Planning commission authorized to serve as board of appeals and adjustments, Minn. Stats. § 462.354(2).

(a)

The board of appeals and adjustments shall have the power and duty of hearing and deciding, subject to appeal to the city council, the following:

(1)

To hear requests for variances from the requirements of this chapter, including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of this chapter and when the variances are consistent with the comprehensive plan. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the zoning ordinance. The term "practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the property in a reasonable manner not permitted by this chapter; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute practical difficulties. The term "practical difficulties" includes, but is not limited to, inadequate access to direct sunlight for solar energy systems. Variances shall be granted for earth-sheltered construction, as defined in Minn. Stats. § 216C.06, subd. 14, when in harmony with this chapter. The board of appeals and adjustments or the city council, as the case may be, may not permit as a variance any use that is not allowed under this chapter for property in the zone where the affected person's land is located. The board or city council, as the case may be, may permit as a variance the temporary use of a one-family dwelling as a two-family dwelling. The board or the city council, as the case may be, may impose conditions in the granting of variances. A condition must be directly related to, and must bear a rough proportionality to, the impact created by the variance;

(2)

Appeals in which it is alleged that there is an error in any order, requirement, decision or determination made by an administrative officer in the interpretation or enforcement of this chapter;

(3)

Requests for variances from the literal provisions of article XI of chapter 26;

(4)

Requests for modifications from the requirements of article II of chapter 34;

(5)

If a variance request is part of another land use application, including, but not limited to, a conditional use permit, rezoning and preliminary or final site plan, the decision by the zoning board of appeals is automatically appealed to the city council. The city council would then take official action on the applications, including the variance. If a variance request is made along with a certificate of appropriateness for the heritage preservation board, the zoning board of appeals decision is not automatically appealed. The final decision of the board of appeals would stand unless appealed; and

(6)

If a land use or zoning permit or approval for a building in such location is denied, the board of appeals and adjustments shall have the power, upon appeal filed with it by the owner of the land, to grant a permit or approval for building in such location in any case in which the board finds, upon the evidence and the arguments presented to it, that:

a.

The entire property of the appellant, of which such area identified for public purposes forms a part, cannot yield a reasonable return to the owner unless such a permit or approval is granted; and

b.

Balancing the interest of the municipality in preserving the integrity of the official map and of the comprehensive municipal plan and the interest of the owner of the property in the use of the property and in the benefits of ownership, the grant of such permit or approval is required by considerations of justice and equity.

(b)

In addition to the notice of hearing required by Minn. Stats. § 462.354, subd. 2, a notice shall be published in the official newspaper once, at least ten days before the day of the hearing. If the board of appeals and adjustments authorizes the issuance of a permit or approval, the city council or other board or commission having jurisdiction shall have six months from the date of the decision of the board to institute proceedings to acquire such land or interest therein, and if no such proceedings are started within that time, the officer responsible for issuing permits or approvals shall issue the permit or approval, if the application otherwise conforms to local ordinances. The board shall specify the exact location, ground area, height and other details as to the extent and character of the building for which the permit or approval is granted.

(Code 1970; Code 1992, § 850.04(2)B)

State Law reference— Power and duty of board of appeals and adjustments, Minn. Stats. §§ 462.357(6) and 462.359, subd. 4.

The owner of land to which the variance relates may file a petition for a variance with the planning department. The petition shall be made on forms provided by the planning department and shall be accompanied by the fee set forth in section 2-724. The petition shall be accompanied by plans and drawings to scale which clearly illustrate, to the satisfaction of the planner, the improvements to be made if the variance is granted. The planner may require the petitioner to submit a certificate by a registered professional land surveyor verifying the location of all buildings, setbacks and building coverage, and certifying other facts that, in the opinion of the planner, are necessary for evaluation of the petition.

(Code 1970; Code 1992, § 850.04(2)C)

A person who deems himself aggrieved by an alleged error in any order, requirement, decision or determination made by an administrative officer in the interpretation and enforcement of this chapter may appeal to the board by filing a written appeal with the planning department within 30 days after the date of such order, requirement, decision or determination. The appeal shall fully state the order to be appealed and the relevant facts of the matter.

(Code 1970; Code 1992, § 850.04(2)D)

(a)

Notice of variance hearings shall be mailed not less than ten days before the date of the hearing to the person who filed the petition for variance and to each owner of property situated wholly or partially within 200 feet of the property to which the variance relates, insofar as the names and addresses of such owners can be reasonably determined by the clerk from records maintained by the assessor.

(b)

A notice of hearing for appeals of administrative decisions shall be published in the official newspaper of the city not less than ten days before the hearing. A notice shall also be mailed to the appellant.

(c)

No new notice need be given for any hearing which is continued by the board to a specified future date.

(Code 1970; Code 1992, § 850.04(2)E)

(a)

The board of appeals and adjustments shall not grant a petition for a variance unless it finds that:

(1)

The variance would be in harmony with the general purposes and intent of this chapter;

(2)

The variance would be consistent with the comprehensive plan; and

(3)

There are practical difficulties in complying with this chapter.

(b)

The term "practical difficulties" means the following:

(1)

The property owner proposes to use the property in a reasonable manner not permitted by this chapter;

(2)

The plight of the landowner is due to circumstances unique to the property not created by the landowner; and

(3)

The variance, if granted, will not alter the essential character of the locality.

(c)

Economic considerations alone do not constitute practical difficulties.

(d)

Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems.

(e)

Variances shall be granted for earth sheltered construction, as defined in Minn. Stats. § 216C.06, subd. 14, when in harmony with this chapter.

(f)

No variance may be granted that would allow any use that is not allowed in the zoning district in which the subject property is located.

(g)

A variance may be approved for the temporary use of a one-family dwelling as a two-family dwelling.

(h)

A favorable vote by the board shall be deemed to include a favorable finding on each of the foregoing matters, even if not specifically set out in the approval resolution or the minutes of the board meeting.

(Code 1970; Code 1992, § 850.04(2)F)

State Law reference— Variances, Minn. Stats. § 462.357, subd. 6.

(a)

The following individuals may appeal a decision of the board of appeals and adjustments:

(1)

Any petitioner for a variance;

(2)

Any owner to whom notice of the variance hearing is required to be mailed pursuant to this chapter;

(3)

The appellant in the case of an appeal of an administrative decision;

(4)

Any person who deems to be aggrieved by the board's decision on the appeal of an administrative decision; and

(5)

Any administrative officer of the city.

(b)

An appeal from a decision of the board of appeals and adjustments shall be filed with the city clerk no later than ten days after the decision by the board. If not so filed, the right of appeal shall be deemed waived, and the decision of the board shall be final.

(Code 1970; Code 1992, § 850.04(2)G)

The council shall hear and decide all appeals from the decisions of the board of appeals and adjustments, and variances associated with other land use applications. The city council shall follow the same procedures as to notices, hearings, findings for variances and decisions that the board is required to follow relative to the subject matter of the appeal pursuant to this chapter. A favorable vote by the council shall be deemed to include a favorable finding on each of the required findings, even if not specifically set out in the approval resolution or the minutes of the council meeting.

(Code 1970; Code 1992, § 850.04(2)H)

In granting a variance, the board of appeals and adjustments, or the city council on appeal, may impose conditions. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance.

(Code 1970; Code 1992, § 850.04(2)I)

State Law reference— Similar provisions, Minn. Stats. § 462.357, subd. 6.

The board of appeals and adjustments, or the council on appeal, shall maintain a record of its proceedings which shall include the minutes of its meetings and final order concerning the variance petition or appeal of administrative decision. If a variance is granted, the petitioner, at the petitioner's expense, shall duly record the final order in the proper office to give constructive notice. A verified copy of such order, with the recording data, shall be delivered to the planner. The board, or the council on appeal, may require such order to be recorded and such verified copy to be delivered to the planner before the variance shall be effective.

(Code 1970; Code 1992, § 850.04(2)J)

(a)

If, within one year after the date of the meeting of the board of appeals and adjustments, or the council on appeal, at which the variance was granted, the owner or occupant of the affected land shall not have obtained a building permit, if one is required, and commenced the work or improvement described in such petition, the variance shall become null and void unless a petition for extension of time in which to commence the proposed work or improvement has been granted.

(b)

A petition for extension shall be in writing and filed with the clerk within such one year period. The petition for extension shall state facts showing a good faith attempt to use the variance and shall state the additional time requested to begin the proposed work or improvement. The petition shall be presented to the board for hearing, findings and decision in the same manner as then required by this chapter for an original petition for variance. The board may grant an extension of the variance for up to one year upon finding that a good faith attempt to use the variance has been made, that there is a reasonable expectation that the variance will be used during the extension, that speculation will thereby not be fostered and that the facts and circumstances under which the original variance was granted are not materially changed.

(Code 1970; Code 1992, § 850.04(2)K)

No application for a variance which has been denied, in whole or in part, shall be resubmitted within 12 months of the date of the order of denial, except that a new application may be permitted to the same denying board, if new evidence or a change of circumstances warrant it.

(Code 1970; Code 1992, § 850.04(2)L)