Zoning variance

A variance permits a departure from a dimensional zoning requirement — a setback, a height limit, a minimum lot size — where complying would cause the owner practical difficulties.

It does not authorise a use the district prohibits. That is a rezoning or a conditional use permit.

The Minnesota standard, and why it changed#

For a period, variances in Minnesota cities were effectively unobtainable.

In Krummenacher v. City of Minnetonka (Minn. 2010), the Supreme Court applied the statutory phrase "undue hardship" strictly, holding that a city could grant a variance only where the property could not be put to a reasonable use without one.

Almost no application meets that. A property that can be used at all, in any reasonable way, fails the test — which meant a homeowner wanting to extend a garage two feet into a setback had no route.

The legislature responded in May 2011, replacing "undue hardship" with "practical difficulties" and aligning the city statute, Minn. Stat. 462.357 subd. 6, with the county provision at 394.27 subd. 7.

The three-factor test#

Under the current standard, practical difficulties means:

Reasonable manner. The owner proposes to use the property in a reasonable manner permitted by the ordinance.

Unique circumstances. The owner's plight is due to circumstances unique to the property, and not created by the owner.

Essential character. The variance will not alter the essential character of the locality.

All three must hold.

The trap in factor two#

Self-created difficulty is the most common reason variances fail.

An owner who buys a lot knowing it is undersized, or who builds in a position that leaves no room, or who divides land in a way that creates the problem, has created their own plight.

Circumstances unique to the property means the land — an unusual shape, a wetland, a slope, a pre-existing structure — not a decision the owner made.

Conditions and proportionality#

The 2011 law clarified that conditions may be imposed on a variance where they are directly related to, and bear a rough proportionality to, the impact created by the variance.

That proportionality requirement matters. A condition unrelated to the variance's actual impact is not authorised by it.

Practical advice#

Establish which application you need. Dimensional problem, variance. Use problem, conditional use permit or rezoning. Both, both applications.

Address the three factors explicitly in the application. Boards decide against the statutory test, and an application that never mentions it makes their job harder.

Build the record. Where a decision might be challenged, the reasons stated at the hearing are what a court reviews.

Ask the planning staff first. In most Minnesota jurisdictions a pre-application conversation is free, and staff will say whether an application has any prospect before it is prepared.