A.

Purpose. The purpose of this Section is to provide for deviations from the literal provisions of this Ordinance in instances where strict enforcement of the provisions 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 variances are harmony with the general purposes and intent of this Ordinance, and the variances are consistent with the Comprehensive Plan.

B.

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

C.

Criteria for Granting. Conditions governing considerations of variance requests.

1.

Variances shall only be permitted when they are:

a)

In harmony with the general purposes and intent of this Ordinance; and

b)

Consistent with the Comprehensive Plan.

2.

Variances may be granted when the Applicant for the variance establishes that there are practical difficulties in complying with this Ordinance.

3.

"Practical difficulties," as used in connection with the granting of a variance, means that:

a)

The property owner's proposal for the property is reasonable but not permitted by this Ordinance;

b)

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

c)

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

4.

Economic considerations alone do not constitute practical difficulties. Practical difficulties include, but are not limited to, inadequate access to direct sunlight for solar energy systems.

5.

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

6.

The City Council shall not permit as a variance any use that is not allowed under this Ordinance for property in the zoning district where the affected person's land is located, except the City Council may permit as a variance the temporary use of a one family dwelling as a two family dwelling.

7.

The City Council 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.

8.

An application for a variance shall set forth reasons that the variance is justified under the criteria of this section in order to make reasonable use of the land, structure or building.

A.

Variances.

1.

Processing.

a)

Requests for variances shall be filed with the City 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 copies and one reduced (8½ x 11 inch) 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 at least 30 days from the date of the official submission of the application unless determined otherwise by the Zoning Administrator. An application shall be deemed complete when all the informational requirements have been met, as required by this Ordinance.

b)

Upon receipt of an application, the City shall schedule a public hearing and provide notice of the hearing specified hereunder. The Planning Commission shall conduct the hearing, and report its findings and recommendations to the City Council in accordance with the procedure specified herein. Notice of said hearing shall consist of a legal property description of request, and be published in the official newspaper at least ten days prior to the hearing and written notification of said hearing shall be mailed at least ten days prior to all owners of land within 500 feet of the boundary of the property in question (public right-of-way shall not be included in the 500-foot measurement). Hennepin County Property Tax Service 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 a copy of the application for proposed variance to the Commissioner of Natural Resources sufficiently in advance so that the Commissioner will receive at least ten days' advance 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 Zoning Administrator 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 the request or to retain expert testimony with the consent and at the expense of the applicant concerning the request. 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.

h)

The Planning Commission shall make findings of fact and recommend approval or denial of the request, and forward such report of factual findings and recommendation on the application to the City Council. Such findings and recommendation shall be based upon the criteria listed Section 905.01.C of this Ordinance.

i)

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

j)

If the Planning Commission has not acted upon the request within a period of time sufficient to allow a decision to be made by the City Council within the time requirements of Section 903.02.Q of this Ordinance, the City Council may proceed without the Planning Commission's consideration and action on the request.

k)

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

l)

The Council shall make findings of fact and approve or deny a request for variance as soon as such request may be heard after receipt of the Planning Commission's recommendation. Such findings and decision shall be based upon the criteria listed Section 905.01.C of this Ordinance.

m)

A variance shall be approved and granted upon the affirmative majority vote (at least three of five members) of the City Council.

n)

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 30 days of the decision to the Hennepin County District Court.

o)

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 days of such action.

p)

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 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 members.

q)

If a request for a variance receives approval of the City Council, the applicant shall record such with the County Recorder within 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.

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 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 Zoning Administrator not less than 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.

A.

Upon approval of a variance, the City shall be provided, when deemed necessary by the City Council, with a surety bond, cash escrow, certificate of deposit, securities, or cash deposit prior to the issuing of building permits or initiation of work on the proposed improvements or development. Said security shall guarantee conformance and compliance with the conditions of the variance and City ordinance provisions.

B.

The security shall be in the amount equal to 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.