08-22-1988 - Agenda Packet City Council - regular meeting

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IV. Analysis A variance permits a person to use his property in a manner forbidden by a zoning ordinance. See ►lolasek v. Village_ of Medina, 226 B,W,2d 900 (Minn. 1975). The law distinguishes between so-called "use" variances from "area" or "nonuse" variances. One court has described the distinction as follows: A use variance is one that permits a use other than that prescribed by the zoning ordinance . . . . An area variance . . . is primarily a grant to erect, alter or use a structure of a permitted use in a manner other than that prescribed by . . . the zoning ordinance. Alumni Control Brd. v. City of Lincoln, 137 N.W.2d 800 (Neb. 1965). Generally an area variance allows a modification of site development requirements such as lot size, setback, height, etc. See D. Mandelker, Land Use Law p. 167-68 (1982). As stated above, Minnesota Statute, section 462.357, subdivision 6(2) prohibits use variances. The Minnesota Supreme Court has excluded "nonuse" variances from this prohibition and has permitted variances for site development requirements like area, density, and parking requirements. See Merriam Park Community Council, Inc.v. McDonough, 210 N.W.2d 416 (Minn. 1973). Thus, the issue in the instant case is whether the valiance sought would constitute a prohibited use variance or a permissible nonuse variance. Private docks are not separately listed as a "permitted use" in any zoning district. A preliminary review of the City zoning ordinances indicates that docks are only permitted as an "accessory use." See e.g., City Ord. §§ 10.23, subd. 5(A) (LR-1A zone), 10.24, subd. 4(A) (LR-lB zone), 10.25, subd. 5(A) (LR-1C zone). The ordinances are relatively clear that accessory uses are not allowed without a principal use. See e.g. City Ord. §§ 10.02(721) (accessory use is a use subordinate to the principal use . . . and exclusiiely used incidental to the principal use), 10.03, subd. 9 (no accessory structure shall be constructed prior to construction of the principal structure). To retain the dock, therefore, the landowner would have to obtain a variance from the restriction that disallows an accessory uses without a principal use. Such a variance does n prohibited by the statute. The any "rise that is not permitted" ordinance. in fact, docks are district, but only under certai be a principal structure or use docks as a "permitted accessory of constitute a use variance statute prohibits variances for under the pertinent zoning "permitted" in the n conditions -- i.e., there must The zoning ordinance describes use." City Ord. § 10.25, subd.