A.    Designated Zoning Official: The zoning official designated by the city council, has authority granted by the city council, and is responsible for enforcement, maintenance, and administration of the zoning ordinance and may be provided with the assistance of other persons as authorized by the city council. Specific duties include the following:

      1.    Process applications for zoning permits;

      2.    Process applications for zoning changes, zoning amendments, conditional use permits;

      3.    Process applications for variances;

      4.    Update zoning map periodically to reflect zoning changes;

      5.    Prepare findings of the planning commission and board of appeals to be submitted to the city council.

If the zoning official finds that any of the provisions of this title are being violated, he/she shall notify the person responsible for such violation in writing, indicating the nature of the violation and ordering the action necessary to correct it. The zoning official shall order discontinuance of the illegal use of land, buildings or structures; removal of illegal buildings or structures, or of the additions, alterations or structural changes thereto; discontinuance of any illegal work being done; or shall take any other action authorized by this title to ensure compliance with or to prevent violation of its provisions.

   B.    Zoning Permit: A zoning permit must be completed to ensure that all provisions of the zoning ordinance are met when the applicant proposes to construct a new structure, or to construct an expansion or addition to an existing structure, or to construct an accessory building, or to move a structure onto a lot. When a building is to be moved, it must also comply with the provisions of section 10-5-3 of this title.

   C.    Application For Zoning Permit: Application forms are available at city hall. Plans shall be drawn, showing the actual dimensions and shape of the lot to be built upon; the exact sizes and locations on the lot of buildings already existing, if any; and the location and dimensions of the proposed building or alteration. The application shall include such other information as lawfully may be required, including existing or proposed buildings or alterations; existing or proposed uses of structures and land; existing or proposed parking; the number of families, housekeeping units, or rental units the building is designed to accommodate; conditions existing on the lot; and such other matters as may be necessary to determine the conformance with, and provide for the enforcement of, this title.

The permit will state and document the following conditions to be met prior to approval:

      1.    Any person desiring to improve property shall submit an accurate description of the property to be improved including front, rear and side yard lot lines of buildings, location of easements crossing the property, encroachments and any other information which may be necessary to ensure conformance to city provisions.

      2.    A lot must be served with city water and sewer before a zoning permit can be issued.

      3.    All buildings shall be placed so that they will not obstruct future streets which may be constructed by the city in conformity with existing streets and according to the system and standards employed by the city.

      4.    Not more than one principal building shall be located on a parcel.

      5.    All new residential and commercial construction or building relocation of same will require that applicant provide a survey of the property to the zoning official.

      6.    All "residential" construction must have a Minnesota licensed contractor and provide proof of insurance when required by Minnesota law.

      7.    If any part of the lot is in or adjacent to the 100-year floodplain, a certified elevation plan must be submitted. If lot is in floodplain, applicant must also conform to title 11 of this code.

      8.    If any part of the lot is in or adjacent to wetlands, applicant must also conform to title 11 of this code.

      9.    Building elevations will be governed by title 9, chapter 1 of this code. The permit must document garage floor and structure elevation.

      10.    Building numbering will be governed by title 9, chapter 2 of this code.

   D.    Time Frame For Permit Approval: An official zoning decision will be made on permits within a sixty (60) day time frame. The sixty (60) day time frame starts from the date the completed city application, all required information, and fees are submitted to the zoning official. If the application does not contain all information required by law or by a previously adopted rule, ordinance or policy, the zoning official will provide written notification within ten (10) business days telling the applicant "what information is missing". The clock will restart on the sixty (60) days once the information is received by the zoning official.

   E.    Extension Of Permit Approval Time Frame: The city may extend the sixty (60) day limit for an additional sixty (60) days. The zoning official must give the applicant written notice of the extension before the initial sixty (60) day period ends. The written notice must indicate two (2) things: the reason for the extension and the length of the extension (up to an additional 60 days). Reasons for an extension may include, for example, the need for additional staff review of complex issues or the need for additional public meetings or planning commission review.

When state law requires the preparation of an environmental assessment worksheet (EAW) or an environmental impact statement (EIS) the deadline is extended until sixty (60) days after the review process is completed.

   F.    Copies Of Permit: A copy of the permit shall be returned to the applicant, after such copy has been marked either approved or unapproved and attested to same by the zoning official's signature on such copy. The original copy of the permit shall be retained by the zoning official.

   G.    Expiration Of Zoning Permit: If the work described in any zoning permit is not completed within twelve (12) months, said permit shall expire and be null and void. It shall be canceled by the zoning official and written notice thereof shall be given to the persons affected, together with notice that further work as described in the canceled permit shall not proceed unless, and until, a new zoning permit has been obtained.

   H.    Construction And Use To Be As Provided In Applications, Plans, And Permits: Zoning permits issued on the basis of plans and applications approved by the zoning official authorize only the use, arrangement, and construction set forth in such approved plans and applications, and no other use, arrangement, or construction. Use, arrangement, or construction which is at variance with the approved zoning permit shall be a violation of this title.

   I.    Enforcement And Violations: The zoning ordinance shall be administered and enforced by the zoning official. The zoning official may institute, in the name of the city, any appropriate actions or proceedings against a violator as provided by law or city ordinances. Failure to comply with a condition in a conditional use permit shall be a violation of this title. Each day such violation continues or occurs constitutes a separate offense and may be prosecuted as such.

Zoning Permit Process

(Ord. 230, 5-6-2002)

   A.    Intent: It shall be deemed nonconforming when, within the districts established by this title or amendments that may later be adopted, there exists lots, structures and uses of land and structures which where lawful before this title was passed or amended, but which would be prohibited, regulated or restricted under the terms of this title or future amendments. This title permits these nonconformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this title to be incompatible with permitted uses in the districts involved. It is further the intent of this title that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses not permitted in the district.

Nothing herein contained shall require any change in plans, construction or designated use of a building or structure for which a building permit has been issued to prior to the effective date hereof, provided however, that the entire building shall be completed according to such plans as filed within twelve (12) months from the date of issuance of said permit.

   B.    Nonconforming Lots Of Record: In any district in which single- family dwellings are permitted, notwithstanding limitations imposed by other provisions of this title, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date hereof provided that it fronts on a public right of way and provided, further, that the lot area is at least eighty five percent (85%) of the minimum requirements of this title. This provision shall apply provided that side yards and front yard setbacks, and maximum lot coverage limits shall conform to the regulations for the district in which such lot is located.

   C.    Nonconforming Uses Of Land: Where, at the effective date of adoption or amendment of this title, lawful use of land exists that is made no longer permissible under the terms of this title as enacted or amended, such use may be continued, so long as it remains otherwise lawful, subject to the following provisions:

      1.    No such nonconforming use shall be enlarged or extended to occupy a greater area of land than was occupied at the effective date hereof;

      2.    No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date hereof;

      3.    If any such nonconforming use of land ceases for any reason for a period of more than six (6) months, any subsequent use of such land shall conform to the regulations specified by this title for the district in which such land is located.

   D.    Nonconforming Structures: Where a lawful structure exists at the effective date hereof that could not be built under the terms of this title by reason of restrictions on area, lot coverage, height, yards, elevation or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

      1.    No such structure may be enlarged or altered in a way that increases its nonconformity; (Ord. 230, 5-6-2002)

      2.    Should such structure be destroyed by any means to an extent of more than fifty percent (50%) of its replacement cost at the time of destruction, it shall be allowed to be reconstructed on the same footprint that currently exists; (Ord. 271, 10-5-2015)

      3.    Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved;

      4.    On any structure devoted in whole or in part to any nonconforming use, work may be done in any period of twelve (12) consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not exceeding twenty five percent (25%) of the current replacement value of the building as it existed at the effective date hereof shall not be increased; and

      5.    Nothing in this title shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.

   E.    Nonconforming Uses Of Structures And Land In Combination: If a lawful use of structures or of structures and land in combination (hereinafter, use) exists at the effective date hereof that would not be allowed in the district under the terms of this title, that use may be continued so long as it remains otherwise lawful, subject to the following provisions: (Ord. 230, 5-6-2002)

      1.    No existing structure devoted to a use not permitted by this title in the district in which it is located shall be enlarged, extended, constructed, moved or structurally altered except to allow the existing structure to be reconstructed to the existing footprint that is currently in place; (Ord. 271, 10-5-2015)

      2.    Any nonconforming use may be extended throughout any parts of a building which were arranged or designed for such use at the time of adoption of amendment of this title, but no such use shall be extended to occupy any land outside such building;

      3.    Any nonconforming use of a structure, or structure and premises, may be changed to another nonconforming use provided that the Board of Adjustment, by making findings in the specific case, shall find that the proposed use is equally or more appropriate to the district than the existing nonconforming use. In permitting such change, the Board of Adjustment may require appropriate conditions and safeguards in accordance with the provisions of this title;

      4.    Any nonconforming use which is replaced by a permitted or conditional use, shall thereafter conform to the regulations for the district in which such structure is located, and the nonconforming use may not thereafter be resumed;

      5.    When a nonconforming use is discontinued or abandoned for six (6) months, the nonconforming use shall not be resumed unless otherwise approved by the City Council;

      6.    Where nonconforming use status applies to a structure and premises in combination, continuing use of the land in a nonconforming manner shall not be permitted if the structure is removed or destroyed.

   F.    Phasing Out Of Qualifying Nonconforming Uses: The following nonconforming uses of buildings, structures or land may continue for a period no longer than one (1) year from the effective date hereof, or any amendment hereto which causes the use to be nonconforming:

      1.    Any nonconforming use with a building or structure having an assessed value of two thousand dollars ($2,000.00) or less on the effective date hereof or amendment.

      2.    Any nonconforming use of land where no enclosed building is involved or where the only buildings involved are accessory or incidental to such use or where such use is maintained in connection with a conforming building.

Every such nonconforming use shall be completely removed from the premises at the expiration of the one year period.

   G.    Status Of Variance Or Conditional Use Permits: If a conditional use permit or a variance has been granted as provided in this title, or in a previous variance of public record, it shall not be deemed a nonconformity, but shall without further action be deemed permitted in such district. (Ord. 230, 5-6-2002)

   A.    Purpose Of Conditional Use Permit: The purpose of a conditional use permit is to provide the city with discretion on determining the suitability of certain designated uses upon the general welfare, public health and safety. In making this determination, whether or not the conditional use is land or buildings, the effect upon traffic into and from the premises, or on any adjoining roads, and all other or further factors as the city shall deem a prerequisite of consideration in determining the effect of the use on the general welfare, public health, and safety.

   B.    Initiating A Conditional Use Permit Request: Any person owning property, or having documented interest therein, may initiate a request for a conditional use permit for that property in conformance with the provisions of this title. The property owner or designated representative shall complete the required application for a conditional use permit which may be obtained from the zoning official. (Ord. 230, 5-6-2002)

   C.    Filing Application For A Conditional Use Permit: The application shall be filed with the zoning official who shall refer the application together with comments thereon to the planning commission. Such application shall be accompanied by a fee as established in section 3-8-1 of this code. The chair of the planning commission may, optionally, call for a public hearing for the next planning commission meeting to expedite the process. The city, after receipt and review of the application, may request additional information from the applicant which it deems necessary for a proper review by the planning commission. The request for a conditional use permit shall be placed on the agenda of a regular or special meeting of the planning commission to occur no later than forty (40) days from the date of submission. (Ord. 230, 5-6-2002; amd. Ord. 246, 12-3-2007)

Whenever an application for a conditional use permit has been considered and denied by the city council, a similar application for the conditional use permit affecting the same property shall not be considered again by the planning commission for at least one year from the date of its denial, except as follows:

      1.    Applications are withdrawn prior to the city council taking final action on the request;

      2.    The planning commission determines that the circumstances surrounding the previous application have changed substantially;

      3.    The planning commission decides to reconsider such matter by a vote of not less than a majority of all members.

   D.    Time Frame For Permit Approval: An official zoning decision will be made on permits within a sixty (60) day time frame. The sixty (60) day time frame starts from the date the completed city application, all required information, and fees are submitted to the zoning official. If the application does not contain all information required by law or by a previously adopted rule, ordinance or policy, the zoning official will provide written notification within ten (10) business days telling the applicant "what information is missing". The clock will restart on the sixty (60) days once the information is received by the zoning official.

   E.    Extension Of Permit Approval Time Frame: The city may extend the sixty (60) day limit for an additional sixty (60) days. The zoning official must give the applicant written notice of the extension before the initial sixty (60) day period ends. The written notice must indicate two (2) things: the reason for the extension and the length of the extension (up to an additional 60 days). Reasons for an extension may include, for example, the need for additional staff review of complex issues or the need for additional public meetings or planning commission review.

When state law requires the preparation of an environmental assessment worksheet (EAW) or an environmental impact statement (EIS) the deadline is extended until sixty (60) days after the review process is completed.

   F.    Public Hearing: Upon receipt of an application for a conditional use permit, the zoning administrator shall set the time and date for a public hearing. The planning commission shall conduct the hearing and report its findings and make recommendations to the city council. Notice of said hearing shall consist of a legal property description and a summary description of the request, and be published in the official newspaper at least ten (10) days prior to the hearing. A written notice of said hearing shall be mailed at least ten (10) days prior to the hearing to all owners of land within three hundred fifty feet (350') of the property to which the conditional use permit relates. A copy of the hearing 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 record of the proceeding. Failure of a property owner to receive said notice, or failure to provide mailed notice to individual property owners, or defects in the notice shall not invalidate any such proceedings as set forth within this title provided a bona fide attempt has been made to comply with the notice requirements of this title.

   G.    Consideration Of Conditional Use Request By Planning Commission: Providing the applicant has furnished all information, as requested by the zoning official, and provided the prescribed notification requirements can be met, the planning commission shall consider the application at its next meeting. The planning commission shall formulate its recommendations within seven (7) days of its meeting at which the application was first considered.

The planning commission shall provide its recommendation to the city council who shall consider request at its next regular meeting. Failure of the planning commission to provide a recommendation to the city council shall not invalidate the proceedings or actions of the city council.

   H.    Consideration Of Conditional Use Request By City Council: If, upon receiving the report and recommendation of the planning commission, the city council finds inconsistencies in the review process, the city council may refer the matter back to the planning commission for further consideration prior to making a final decision. The city council shall have the option to set and hold a public hearing if deemed necessary and shall make a recorded finding of fact and may impose any condition it considers necessary to protect the health, safety, and welfare.

The city council must take action on the application at the next available council meeting from the date of receiving the recommendation of the planning commission or the appeal of the applicant when no report is received. An application for a conditional use permit may be granted by a majority vote of the council.

If the city council grants the conditional use permit, they may impose such conditions, as may be deemed necessary for, or appropriate to serve the purposes of, the comprehensive plan, the zoning ordinance, and to protect the public health, safety, and welfare (i.e., additional off street parking requirements, etc., above and beyond the normal requirements).

   I.    Issuance Of A Conditional Use Permit: In the issuance of a conditional use permit, the planning commission, may for good reason, recommend approval and the city council may approve a use that does not meet all the minimum standards and requirements of the zoned district. Any standards not met shall be so noted as part of the conditional use permit.

   J.    Amended Conditional Use Permits: An amended conditional use permit may be applied for and administered in a manner similar to that required for a new conditional use permit. Amended conditional use permits shall include reapplications for permits that have expired or have been denied, requests for substantial changes in conditions or expansions of use, and as otherwise described in this title. The planning commission may, upon written application and with approval by a majority of a quorum, authorize minor changes in location, siting, and heights of buildings or structures or an increase in overall coverage of buildings and structures; however, no change authorized by this subsection shall cause any of the following:

      1.    A change in the use or character of the development;

      2.    An increase in intensity of use;

      3.    An increase in traffic circulation;

      4.    A reduction in off street parking and loading spaces; or

      5.    A reduction in required pavement widths.

   K.    Cancellation Of Conditional Use Permits: Where applicable, unless otherwise specified by the city council at the time it is authorized, a conditional use permit shall expire if the applicant fails to utilize such conditional use permit within one year from the date of its authorization.

   L.    Appeal: Any person or persons or any taxpayer, department, board, or bureau of the city aggrieved by the decision of the city council shall have the right to seek review within forty five (45) days of the decision with a court of record of such decision in the manner provided by the laws of the state of Minnesota, and particularly Minnesota statutes, chapter 462 as such statute may be from time to time amended, supplemented, or replaced.

Chart 2: Conditional Use Process

(Ord. 230, 5-6-2002)

   A.    Amendments To The Zoning Ordinance: The regulations, restrictions, and zoning districts promulgated in this title may, from time to time, be amended, supplemented, changed, rezoned, or repealed; provided that no action be taken until after a public hearing in relation thereto, at which parties with interest and citizens shall have an opportunity to be heard. These changes may be to the text, map, or both components of this title.

   B.    Initiation Of Zoning Amendment Request: The planning commission or city council may, upon their own motion, initiate a zoning amendment request in accordance with the provisions of this title.

Any person owning property, or having documented interest therein, may initiate a request for a zoning amendment for that property in conformance with the provisions of this title. The property owner or designated representative shall complete the required application for a zoning amendment which may be obtained from the zoning official.

   C.    Filing Application For A Zoning Amendment: The application shall be filed with the zoning official who shall refer the application together with comments thereon to the planning commission. The chair of the planning commission may call for a public hearing for the next planning commission meeting to expedite the process. If the timing of the application is such that the public notification requirements cannot be met prior to the next meeting, the chair of the planning commission shall schedule the public hearing for the following month. The zoning official, after receipt and review of the application, may request additional information from the applicant which is deemed necessary for a proper review by the planning commission. The request for a zoning amendment shall be placed on the agenda of a regular or special meeting of the planning commission to occur no later than forty (40) days from the date of submission.

Whenever an application for a zoning amendment has been considered and denied by the city council, a similar application for the zoning amendment affecting the same property shall not be considered again by the planning commission for at least one year from the date of its denial, except as follows:

      1.    Applications are withdrawn prior to the city council taking final action on the request;

      2.    The planning commission determines that the circumstances surrounding the previous application have changed substantially;

      3.    The planning commission decides to reconsider such matter by a two-thirds (2/3) vote of the city council.

   D.    Time Frame For Zoning Ordinance Amendment Approval: An official zoning decision will be made on zoning ordinance amendments within a sixty (60) day time frame. The sixty (60) day time frame starts from the date the completed city application, all required information, and fees are submitted to the zoning official. If the application does not contain all information required by law or by a previously adopted rule, ordinance or policy, the zoning official will provide written notification within ten (10) business days telling the applicant "what information is missing". The clock will restart on the sixty (60) days once the information is received by the zoning official.

   E.    Extension Of Zoning Ordinance Amendment Approval Time Frame: The city may extend the sixty (60) day limit for an additional sixty (60) days. The zoning official must give the applicant written notice of the extension before the initial sixty (60) day period ends. The written notice must indicate two (2) things: the reason for the extension and the length of the extension (up to an additional 60 days). Reasons for an extension may include, for example, the need for additional staff review of complex issues or the need for additional public meetings or planning commission review.

When state law requires the preparation of an environmental assessment worksheet (EAW) or an environmental impact statement (EIS) the deadline is extended until sixty (60) days after the review process is completed.

   F.    Public Hearing: Upon receipt of an application for a zoning amendment, the zoning official shall set the time and date for a public hearing. The planning commission shall conduct the hearing and report its findings and make recommendations to the city council. Notice of said hearing shall consist of a legal property description and/or a summary description of the request, and be published in the official newspaper at least ten (10) days prior to the hearing. In the case of a zoning amendment affecting an area of five (5) acres or less, a written notice of said hearing shall be mailed at least ten (10) days prior to the hearing to all owners of land within three hundred fifty feet (350') of the property to which the amendment relates. A copy of the hearing 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 record of the proceeding. Failure of a property owner to receive said notice, or failure to provide mailed notice to individual property owners, or defects in the notice shall not invalidate any such proceedings as set forth within this title provided a bona fide attempt has been made to comply with the notice requirements of this title.

   G.    Consideration Of Zoning Ordinance Amendment Request By Planning Commission: Providing the applicant has furnished all information, as requested by the zoning official, and provided the prescribed notification requirements can be met, the planning commission shall consider the application at its next meeting. The planning commission shall formulate its recommendations within seven (7) days of its meeting at which the application was first considered.

The planning commission shall provide its recommendation to the city council who shall consider the request at its next regular meeting. Should the planning commission fail to provide a recommendation to the city council within the allotted forty seven (47) days, the applicant may appeal directly to the city council for a decision. Failure of the planning commission to provide a recommendation to the city council shall not invalidate the proceedings or actions of the city council.

   H.    Consideration Of Zoning Amendment Request By City Council: If, upon receiving the report and recommendation of the planning commission, the city council finds inconsistencies in the review process, the city council may refer the matter back to the planning commission for further consideration prior to making a final decision. The city council shall have the option to set and hold a public hearing if deemed necessary and shall make a recorded finding of fact and may impose any conditions it considers necessary to protect the health, safety, and welfare.

The city council must take action on the zoning amendment request at the next available council meeting from the date of receiving the recommendation of the planning commission or the appeal of the applicant when no report is received. Approval of a proposed amendment shall require a majority vote of the city council.

   I.    Effective Date: The amendment shall not become effective until such time as the city council approves an ordinance reflecting said amendment and after said ordinance is published in the official newspaper.

   J.    Appeals: Any person or persons or any taxpayer, department, board, or bureau of the city aggrieved by the decision of the city council shall have the right to seek review within forty five (45) days of the decision with a court of record of such decision in the manner provided by the laws of the state of Minnesota, and particularly Minnesota statutes, chapter 462 as such statute may be from time to time amended, supplemented, or replaced.

Chart 3: Zoning Amendment Process

(Ord. 230, 5-6-2002)

   A.    Purpose: The purpose of this section is to provide for deviations from the literal provisions of this title in instances where their strict enforcement would cause undue hardship because of the circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of this title. A variance shall not be permitted for the establishment or expansion of a use.

   B.    Initiation Of A Request For A Variance: Any person owning property, or having documented interest therein, may initiate a request for a variance for that property in conformance with the provisions of this title. (Ord. 230, 5-6-2002)

   C.    Filing An Application For A Variance: The property owner or designated representative shall complete the required application for a variance which may be obtained from the zoning official. Such application shall be accompanied by a fee as established in section 3-8-1 of this code. The application for a variance shall be filed with the zoning official and a zoning permit with proper fees must be submitted at the same time. The zoning official, after review of the application, shall have the authority to request additional information from the applicant which is deemed necessary for a proper review by the planning commission. Should no further information be deemed necessary, or upon receipt of all additional information, the zoning official shall forward the request for a variance to the planning commission. (Ord. 230, 5-6-2002; amd. Ord. 246, 12-3-2007)

Variance requests for the same property shall not be heard within two (2) months of a previous request unless it can be demonstrated to the zoning official that the conditions for the variance have changed.

   D.    Time Frame For Permit Approval: An official zoning decision will be made on permits within a sixty (60) day time frame. The sixty (60) day time frame starts from the date the completed city application, all required information, and fees are submitted to the zoning official. If the application does not contain all information required by law or by a previously adopted rule, ordinance or policy, the zoning official will provide written notification within ten (10) business days telling the applicant "what information is missing". The clock will restart on the sixty (60) days once the information is received by the zoning official.

   E.    Extension Of Permit Approval Time Frame: The city may extend the sixty (60) day limit for an additional sixty (60) days. The zoning official must give the applicant written notice of the extension before the initial sixty (60) day period ends. The written notice must indicate two (2) things: the reason for the extension and the length of the extension (up to an additional 60 days). Reasons for an extension may include, for example, the need for additional staff review of complex issues or the need for additional public meetings or planning commission review.

When state law requires the preparation of an environmental assessment worksheet (EAW) or an environmental impact statement (EIS) the deadline is extended until sixty (60) days after the review process is completed.

   F.    Public Hearing: Upon receipt of an application for a variance, the chair of the board of adjustment shall set the time and date for a public hearing. Notice of said hearing shall consist of a legal property description and/or a summary description of the request, and be published in the official newspaper at least ten (10) days prior to the hearing. In the case if variances affecting an area of five (5) acres or less, a written notice of said hearing shall be mailed at least ten (10) days prior to the hearing to all owners of land within three hundred fifty feet (350') of the property to which the variance relates. A copy of the hearing 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 record of the proceeding. Failure of a property owner to receive said notice, or failure to provide mailed notice to individual property owners, or defects in the notice shall not invalidate any such proceedings as set forth within this title provided a bona fide attempt has been made to comply with the notice requirements of this title.

Variances may require the applicant to provide a lot survey.

   G.    Consideration Of Request For Variance By The Board Of Adjustment: The applicant or representative thereof may appear before the board of adjustment to answer questions concerning the proposed variance. The board of adjustment shall have the authority to request additional information from the applicant or to retain expert testimony with the consent and at the expense of the applicant. Failure by an applicant to supply all necessary supportive information may be grounds for denial of the request.

The board of adjustment shall make findings of fact and shall decide whether to approve or deny the request for variance within sixty (60) days of the receipt of the completed application and fees. A variance to this title shall not be granted unless approved by a majority of the members of the board of adjustment.

A variance from the terms of this title shall not be granted unless the board of adjustment makes findings, following Minnesota statutes chapter 462, and based upon competent material and substantial evidence on the whole record that:

      1.    Special conditions and circumstances exist 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;

      2.    Literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this title;

      3.    Approval of the variance as requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures, or buildings in the same district under the same conditions;

      4.    Special conditions or circumstances do not result from the actions of the applicant;

      5.    Authorization of the variance will not be of substantial detriment to the neighboring property and will not be contrary to the spirit and purpose of this title; and

      6.    Neither a nonconforming use of neighboring lands, structures, or buildings in the same district, nor permitted uses of land, structures, or buildings in other districts shall be considered ground for the issuance of a variance.

   H.    Conditions Of Approval: In authorizing a variance, the board may, in addition to the specific conditions of approval called for in this title, attach such other conditions regarding the location, character, landscaping, or treatment reasonably necessary to further the intent and spirit of this title and the protection of the public interest.

   I.    Cancellation Of Variances: Unless otherwise specified by the board of adjustment at the time it is authorized, a variance shall expire if the applicant fails to utilize such variance within one year from the date of its authorization.

   J.    Appeals: To appeal a decision of the board of adjustment, a written notice of appeal must be filed with the city within forty five (45) days of the decision of the board of adjustment. Appeals to the city council and appeals from the city council's decision shall be in accordance with the procedures for appeals from the board of adjustment set forth in section 10-3-6 of this chapter.

Any person or persons or any taxpayer, department, board, or bureau of the city aggrieved by the decision of the city council shall have the right to seek review within forty five (45) days of the decision with a court of record of such decision in the manner provided by the laws of the state of Minnesota, and particularly Minnesota statutes, chapter 462 as such statute may be from time to time amended, supplemented, or replaced.

Excerpt of Minnesota statutes chapter 462: "To hear requests for variances from the literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance. "Undue hardship" as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls, 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 shall not constitute an undue hardship if reasonable use for the property exists under the terms of the ordinance. Undue hardship also 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 section 216C.06, subdivision 2, when in harmony with the ordinance. The board of appeals and adjustments or the governing body as the case may be, may not permit as a variance any use that is not permitted under the ordinance for property in the zone where the affected person's land is located. The board or governing body 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 governing body as the case may be may impose conditions in the granting of variances to insure compliance and to protect adjacent properties."

Chart 4: Variance Process

(Ord. 230, 5-6-2002)

   A.    Board Designation: A committee of three (3) members shall serve as the board of adjustment. Terms of office shall be four (4) years or shall run concurrently with their terms on the planning commission.

   B.    Applicability: An appeal shall only be applicable to an interpretation of legislative intent of provisions of this title.

   C.    Proceedings Of The Board Of Adjustment: The board of adjustment shall adopt rules necessary to the conduct of the affairs, and in keeping with the provisions of this title. Meetings shall be held at the call of the chair and at such other times as the board may determine. The chair or acting chair, may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public.

The board of adjustment shall keep minutes of its proceedings showing which members were present and how each member voted on each question. Records shall be kept of its examinations and other official actions, all of which shall be a public record and be filed in the office of the zoning official.

   D.    Filing An Appeal: Appeals to the board of adjustment concerning interpretation or administration of this title must be filed with the city by the property owner or their agent or by any officer or department of the governing body of the city affected by any decision of the zoning official within forty five (45) days after the making of the order.

Any appeal filed shall be comprehensive and include all matters subject to question. Such appeals must be filed with the board of adjustment by serving the zoning official. The zoning official shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken. Subsequent appeals filed by the same individual or group which are intended to cause unjustifiable delay shall not be accepted by the city.

   E.    Public Hearing: The board of adjustment shall fix a reasonable time for the hearing of appeal, give public notice, thereof, as well as due notice to all property owners within a three hundred fifty foot (350') radius of the affected property, and decide the same within a reasonable time. The person filing the appeal shall be given written notice of the hearing date. At the hearing, any party may appear in person or by agent or attorney.

   F.    Stay Of Proceedings: An appeal stays all proceedings in furtherance of the action being appealed unless it is certified to the board of adjustment, after the notice of appeal is filed, that by reason of facts stated in the certificate a stay would cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by a court of record on application to the city.

   G.    Procedure: The procedure for making such an appeal shall be as follows:

      1.    The property owner or their agent shall file with the city a written notice of appeal stating the specific grounds upon which the appeal is made. The person filing the appeal shall be given written notice of a hearing date and be able to appear and testify at such hearing. Such hearing shall be held within sixty (60) days of the filing of the appeal. (Ord. 230, 5-6-2002)

      2.    The filing of an appeal shall be accompanied by a fee as provided for in section 3-8-1 of this code. (Ord. 230, 5-6-2002; amd. Ord. 246, 12-3-2007)

      3.    The ruling appealed from shall stand unless a majority of all members of the board of adjustment and appeals by resolution vote to overturn or modify the prior ruling within sixty (60) days of the hearing.

      4.    The board of adjustment shall make its decision by resolution within sixty (60) days of the hearing.

   H.    Decisions Of The Board Of Adjustment:

      1.    In exercising the above mentioned powers, the board of adjustment may, so long as such action is in conformity with the terms of this title, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and may make such other requirement, decision, or determination, and to that end shall have powers of the zoning official from whom the appeal is taken.

      2.    The concurring vote of four (4) members of the board shall be necessary to reverse any order, requirement, decision, or determination of the zoning official, or to decide in favor of the applicant on any matter upon which it is required to pass under this title, or to effect any variation in the application of this title.

      3.    A copy of the decision of the board of adjustment shall be served on the applicant by mail.

   I.    Appeals From The Board Of Adjustment: Any person or persons or any taxpayer, department, board or bureau of the city aggrieved by any decision of the board of adjustment, shall have the right to seek review within forty five (45) days of the decision with the city council of the city. Any appeal must be filed, in writing, with the city clerk/treasurer within the forty five (45) day period, and such written appeal shall set forth the decision appealed from and the date of that decision. Upon receiving a notice of appeal, the appeal shall be placed on the agenda of the next regular council meeting to occur following at least fifteen (15) days from the receipt of the appeal. At that meeting the council shall review the findings of facts and decision made by the board of adjustment, as well as any documents that were furnished to the board of adjustment on the matter. The council may, but is not required to, allow the aggrieved party and the other persons to speak to the council on the issue involved in the appeal. The city council shall have the authority to uphold the decision of the board of adjustment by passing a resolution adopting the findings of facts and decision of the board of adjustment, or the council, by a vote of a majority of all the members of the council, may reverse or modify the decision of the board of adjustment, in which case the city council shall prepare its own findings of facts and decision on the matter appealed. Any person or persons or taxpayer, department, board or bureau of the city aggrieved by the decision of the city council shall have the right to seek review within thirty (30) days of the decision with a court of record of such decision in the manner provided by the laws of the state of Minnesota, and particularly Minnesota statutes, chapter 462 as such statutes may be, from time to time, amended, supplemented or replaced.

   J.    Duties Of Zoning Official, Board Of Adjustment, City Council, And Courts On Matters Of Appeal: It is the intent of this title that all questions of interpretation and enforcement shall be first presented to the zoning official and that such questions shall be presented to the board of adjustment only on appeal from the decision of the zoning official, and that recourse from the decisions of the board of adjustment shall be to the courts as provided by law and particularly by chapter 462, Minnesota statutes.

It is further the intent of this title that the duties of the city council, in connection with this title, shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this chapter and this title. Under this title, the city council shall have only the duties of: 1) considering and adopting or rejecting proposed amendments or the repeal of this title, as provided by law; 2) establishing a schedule of fees and charges; 3) making final determination on conditional uses; and 4) such other duties, if any, as they be expressly imposed upon by this title. (Ord. 230, 5-6-2002)

   K.    Compensation: No board of adjustment member shall receive a salary except as fixed by the council. (Ord. 239, 12-5-2005)

Chart 5:   Procedural Chart For Zoning, Rezoning, Amendments, Variances, And Conditional Use Permits

 

 

(Ord. 230, 5-6-2002)

   A.    Establishment Of Fees, Charges, And Expenses: The city council shall establish, by ordinance, a schedule of fees, charges, and expenses (see section 3-8-1 of this code), and a collection procedure for rezoning applications, variances, conditional uses, appeals, and other matters pertaining to this title. The schedule of fees shall be available at the office of the zoning official, and planning commission as appropriate and may be altered and amended only by the city council. (Ord. 230, 5-6-2002; amd. Ord. 246, 12-3-2007)

   B.    Violations: Violation of the provisions of this title or failure to comply with any of its requirements shall constitute a misdemeanor. Any person who violates this title or fails to comply with any of its requirements after written notice by the zoning official allowing reasonable time to comply, shall, upon conviction thereof, be fined not more than seven hundred dollars ($700.00) and costs of prosecution or imprisoned for not more than ninety (90) days, or both. Each day such violation continues or occurs, constitutes a separate offense and may be prosecuted as such.

The owner or tenant of any building, structure, premises, or part thereof, any architect, builder, contractor, agent, or other person who commits, participates in, assists in, or maintains such violation, may each be found guilty of a separate offense and suffer the penalties herein provided.

Any person commencing construction prior to receiving a zoning permit will be subject to a penalty of tripling the normal zoning fees.

Nothing herein contained shall prevent the city from taking such other lawful action, as is necessary, to prevent or remedy any violation. (Ord. 230, 5-6-2002)