The planning profession in Minnesota has a unique opportunity to examine our near-universal approach to land use regulations in the wake of a dramatic Supreme Court decision. Unfortunately, instead of abandoning the restrictive, use-based zoning that has become ubiquitous in favor of a more permissive, form-based approach, we are going to instead codify the role of local planner as local god, to the detriment of both the planning profession and the communities they serve.
When it comes to zoning, a variance (in some places called a warrant) is essentially a process whereby a waiver is granted from the code. If someone wants to build too close to the lot line than is allowed, for example, they would need to apply for and receive a variance. The ultimate decision is reserved for an appointed board or, sometimes, an elected body.
Here in Minnesota, our statutes have established a dual standard for considering variances. Inside cities, the standard is one of "undue hardship" while outside of cities it is one of "practical difficulties." For the sake of this discussion that is not a huge fact, but it is an important nuance in understanding how variances are often handled and why the Supreme Court of Minnesota has made a lot of people in the planning profession very cranky.
The "undue hardship" standard in cities requires that, for a variance to be approved, the property owner must demonstrate that the code creates a hardship that is unique to their property and that the code, as applied, would eliminate all reasonable use from their property. Taken at face value, this is an extremely high standard. An owner of a property that has been developed or used in any way for any amount of time would find it nearly impossible to argue that their prior use was not reasonable. So, in theory, few variances should be granted.
And really, there is some hard logic to that. If a 50-foot side yard setback is necessary to protect the health, safety and welfare of the community (and it must be necessary, otherwise why would it be in the code), then how can we possibly vary from that? What makes it okay to threaten the public welfare by building in that setback simply by getting a variance?
The answer, in our practical world, is that we don't treat our codes in this way. The 50-foot setback amounts to a "guideline" that, all things being equal, should be followed. If there is a good enough reason to vary from it -- for example, a property owner really wants a bigger garage -- and it doesn't offend our sensibilities (or it does offend our sensibilities but the person really, really wants it and it creates jobs), then go for it. We may throw some conditions on the approval to justify our jobs and force a property owner to genuflect at our power, but then it's over. Variance granted.
That is, until the Minnesota Supreme Court steps in and actually reads the law. That is what happened in Krummenacher v. City of Minnetonka, where the court overruled the Court of Appeals (and over 20 years of case law) by stating something that should be obvious to anyone who understands the concept of separation of powers:
We [the MN Supreme Court] are unable to interpret the statutory language to mean anything other than what the text clearly says—that to obtain a municipal variance, an applicant must establish that "the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls." Minn.Stat. § 462.357, subd. 6. Therefore, unless and until the legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property cannot be put to a reasonable use without the variance.
This is a dramatic shift for Minnesota. Prior to this we had a "good guy" standard consistent with a decision titled Rowell v the City of Moorhead. The Court of Appeals in that decision found that the words "cannot be put to a reasonable use" from the statute actually meant "if the proposed use is reasonable." And people wonder why lawyer jokes are so easy.
The fallout of the Rowell decision should have been as predictable then as the fallout from Krummenacher is today. Rowell made variances easy to get and made zoning officials very, very powerful. Essentially, the decision on what was a reasonable use became the purview of the local jurisdiction. If they found it to be reasonable, by whatever standard, it was good. For example, we actually ran across one board that decided it was every property owner's right to have at least a three-car garage (this is Minnesota, after all), thus justifying a waiver of setback and impervious coverage limits. Zoning officials were allowed to be little Caesars, not the pizza kind but the kind that gave an arbitrary thumbs up or thumbs down to each proposal. As long as findings are provided, they were essentially untouchable.
But while Rowell made variances easy, Krummenacher goes far in the other direction. Here is how one planner called it last September:
In the past, applicants had a good chance of getting a variance if their project was reasonable. Now, they must prove that their property would have no "reasonable use'' without it -- a steep challenge.
"Generally, I would have to say that [variance requests] were most always approved," said Curtis Jacobsen, director of community development for New Hope. "Applying the new standard, they would have all been denied."
Under Rowell, variances became so easy to get that the Minneapolis Star Tribune did an entire series on it last year. Incidentally, I was interviewed for the series but took the conversation in an entirely inconvenient direction and so you will find me nowhere in the articles. My inconvenient observation: it is not the variance process but the underlying codes that are the problem. That and the planning professionals that write them.
In the Krummenacher case, the city had a 50-foot setback. The garage that was approved to be expanded was 17 feet from the property line. The important question here that nobody asks is: Why a 50-foot setback? What is the meaning of the setback? What is the purpose? Why is it 50 feet and not 25 feet? Why is it not 100 feet?
Planners reading this today are scratching their heads. They think I've gone crazy. No, my fellow planners, it is you that have lost your bearings. We can all answer these questions together if we think about it. The answer is simple: We made it up.
There is nothing magic about 50 feet. Obviously, since the city sought fit to vary from it so the owner could put a yoga studio above their garage. There is no matter of public health or safety or welfare that demands a 50-foot setback. Chaos and anarchy will not reign if it were changed to 40 feet. Or 5 feet for that matter. So why have a 50-foot setback? Why have any setback at all?
The answer is that we have to. Our codes, which we copied from some other jurisdiction years ago, have a little box for "setback" and we have to put something there. Fifty feet sounded good for that zone. After all, those are pretty big lots. Sounds right, and we really don't get too many complaints.
The current incarnation of the planning professional, along with the myriad of codes they promote, is obsolete. We functionally have little relevance in a world where we are reduced to such foolishness as enforcing setbacks that have no discernible purpose. We discredit ourselves when we pretend they do, that somehow there is a professional skill involved in approximating acceptable distances and yields. That somehow the pattern of our places can be reduced to the functionality of a Betty Crocker cookbook, one which limits and restricts every aspect of building, unless we specifically allow it.
A cookbook in which only we are qualified to interpret. And only we, working as advisors to a group of non-professional citizens, can decide who can vary from the code, when and under what conditions.
Right now there is pending legislation sponsored by the League of Minnesota Cities, amongst others, to "fix" the statutes and provide cities a more flexible standard for variance approval. This will restore the Planner-as-God position planners all covet in their individual fiefdoms, a nearly unlimited power to decide what is right and good. This legislation will assuredly pass - it has nearly universal support, which actually should be revealing to everyone.
To me it is tragic, however, that this moment of consequence would pass and we would not stop to consider the legacy of the standard Euclidean use-based code. We do not ponder that perhaps the statute is right - that a local code should actually regulate things of import - and that our reactionary and restrictive codes not only over-regulate, but concern themselves with all the wrong things. As planners, we've become so comfortable with a system that gives local planners and boards a tremendous amount of arbitrary and subjective power that we don't consider that maybe it should not be this way.
Maybe we should have to work harder to write quality codes instead of relying on variances to bail us out when things don't work out quite as we have planned. Maybe we need to acknowledge that we don't know so much after all, that we can't predict the future and should quit trying to do so. Maybe we should adopt a different regulatory approach, one that is market-based, permissive and based on the historic patterns that existed prior to our modern codes.
Or, we can just continue to grant variances until the budget line for "planner" is eliminated completely.
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