a)   A variance may be granted from the requirements of this ordinance including those placed on nonconformities. A variance is only permitted when it is in harmony with the general purposes and intent of this ordinance and when the variance is consistent with the comprehensive plan. A variance may be granted when the applicant establishes that there are practical difficulties in complying with this ordinance. Practical difficulties means that the property owner proposes to use the property in a reasonable manner not permitted by this ordinance, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and the variance, if granted, would not alter the essential character of the locality. Economic considerations alone do not constitute practical difficulties. Practical difficulties also includes inadequate access to direct sunlight for solar energy systems. Inadequate access means the failure to achieve reasonable access to direct sunlight, not optimal or maximal access. Variances must be granted for earth sheltered construction as defined in state law, when in harmony with this ordinance. The city may impose conditions in the granting of a variance. A condition must be directly related to and must bear a rough proportionality to the impact created by the variance.

b)   A lot that does not meet the minimum requirements of this ordinance and section 400 is not buildable unless a variance is granted. No variance will be granted to declare a substandard lot buildable unless, in addition to meeting the criteria enumerated in paragraph (a) of this subdivision, the applicant has exhausted all reasonable possibility of combining the lot with an adjacent vacant lot. Notwithstanding the above, no variance is needed to declare buildable any lot which was a lot of record zoned for single family residential use on February 12, 1966 and which meets all of the following minimum standards:

   1)   15,000 square feet;

   2)   90 feet in width at building setback line; and

   3)   110 feet in depth.

c)   No variance shall be granted to permit a use which is not allowed as a permitted use, accessory use or conditional use under this ordinance for property in the district in which the land is located.

d)   No variance shall be granted in the wetlands, floodplain or shoreland districts which allows for a lesser degree of flood protection than is required by sections 300.23, 300.24 or 300.25 of this ordinance.

e)   A variance from the standards applicable to another land use approval, such as a site plan, conditional use permit, and subdivision, does not require a separate application, but the applicant for the underlying land use approval must provide a written narrative explaining the justification for any requested variance. The planning commission and city council may act separately on such a variance at their discretion, but if no separate action is taken, the variance will be considered approved or denied as part of the underlying application.

Application for a variance shall be made to the zoning administrator. The application shall be on forms provided by the city and shall be accompanied by the following:

a)   a plat or map of the property which shows, at a minimum, all lot lines, existing and proposed structures, driveways and parking areas, significant topographical features and mature trees;

b)   evidence of ownership or an interest in the property;

c)   the fee required by section 710 of the code of city ordinances; and

d)   such other information as may be required by the city.

(Amended by Ord. No. 2023-02, effective February 27, 2023)

Upon receipt of a completed application, a date shall be set for a public hearing before the planning commission. The public hearing shall be held only after notice has been sent by mail to the owners of all properties situated wholly or partially within 400 feet, as reflected in the certified records of the Hennepin county auditor.

Following the public hearing or any continuance that is not appealed by the applicant, the planning commission must decide the matter before it. Appeals from orders, requirements, decisions or determinations of an administrative officer will be decided by the planning commission by vote of a simple majority of those present. The planning commission may grant a variance only upon an affirmative vote of two-thirds of its full membership. The planning commission may impose conditions in granting variances to effect the intent of this ordinance and to protect adjacent properties. The planning commission must accompany its decision to deny a variance with a statement of its findings and must serve a copy of its decision upon the applicant by mail. The planning commission action will be final action subject to the right of appeal, except:

a)   if the application is for a variance from the provisions of section 300.29, Subd. 3(g) with respect to the time limit for amortizing non-conforming uses; or

b)   if the variance is an integral part of another land use application that requires city council action.

   In those circumstances, the planning commission action will be a recommendation to the city council, and action by the planning commission will require only approval of a majority of its full membership. Approval of the variance by the city council will require an affirmative vote of two-thirds of its full membership. The Minnesota Department of Natural Resources must be notified of variance applications and decisions in the shoreland district as provided for in section 300.25.

Any variance granted by the city shall run with the land and shall be perpetual unless prior to December 31 of the year following the year of approval and no building permit has been issued or substantial work performed on the project, in which case the variance shall be null and void. The planning commission may extend the period for construction upon finding that the interest of the owners of neighboring properties will not be adversely affected by such extension. If the variance is part of an approved site and building plan, extension of the time period for construction shall be contingent upon a similar extension of the time period for the site and building plan by the planning commission as required by section 300.27 of this ordinance. Once the project is completed as approved, the variance becomes perpetual.

A variance shall be valid only for the project for which it was granted. Construction of any project shall be in substantial compliance with the building plans and specifications reviewed and approved by the planning commission or city council.

Any person aggrieved by a decision of the planning commission regarding a variance or an order, requirement, decision or determination first made by an administrative officer may have such decision reviewed by the city council if a request for review is submitted to the zoning administrator within 10 days of the date of the decision. The appeal shall be in writing and shall include a statement of the alleged errors or omissions of the planning commission. The city council may reverse a decision of the planning commission by an affirmative vote of at least two-thirds of its full membership. The city council shall make a decision within 120 days of submission of a completed application or such longer period not objected to by the applicant. If the city council fails to make a timely decision, the appeal shall be deemed to have been approved.

A certified copy of the variance shall be filed by the applicant with the Hennepin county recorder if the variance applies to abstract property. The variance shall contain a legal description of the property affected.

A person who violates, fails to comply with or assists, directs or permits the violation of the terms or conditions of a variance is guilty of a misdemeanor. A violation is a violation of the variance and renders the variance null and void. A violation also constitutes a public nuisance that may be abated in accordance with the provisions of section 845.

(Amended by Ord. 2011-10, adopted June 20, 2011; amended by Ord. 2010-18, adopted December 20, 2010; amended by Ord. 2008-10, adopted March 24, 2008; amended by Ord. 2007-17, adopted May 7, 2007; Ord. #2003-25, adopted October 27, 2003)