Variance Law Clarified By Supreme Court

The Court released its opinion in Krummenacher v. Minnetonka, which now turns out to be a landmark opinion on land-use variances, rather than a case about nonconforming uses.  Chief Justice Gildea wrote the unanimous opinion. 

The fireworks start on page 11, when J. Gildea picks up the meaning of the phrase, “the property in question cannot be put to reasonable use if used under conditions allowed by official controls.”  Background: for at least the past 20 years, cities (and for that matter, courts) have taken that phrase to mean that the proposed use is reasonable but blocked by the zoning code.  Short of something truly nutty, this is always the case, and the analysis moves on to whether the problem is or is not the landowner’s fault, or whether the proposal will “alter the character” of the area.  The City of Minnetonka analyzed the request along these lines, and the Court of Appeals approved.

The Supreme Court, on the other hand, decides that “put to reasonable use” is a very tough standard, one that should only be met when absolutely necessary to avoid a regulatory taking.  Justice Gildea eventually gets around to a fairly compelling justification for this holding: comparing “undue hardship” as it’s been understood to operate with our precedent on “practical difficulties,” which is supposed to be a more lenient standard.  Using the prevailing interpretation of “reasonable use,” she demonstrates that “undue hardship” has somehow become the easier standard to meet, and concludes that this cannot stand with the prior Supreme Court decisions on “practical difficulties” (the “undue hardship” cases have to this point been Court of Appeals decisions). 

I say, “eventually,” because for some reason the opinion tries to insist that the “plain language of the statute” requires a different finding.  Justice Gildea accuses the Court of Appeals of “rewriting the statute” (something that must be set as an AutoComplete phrase for her at this point) for following conventional wisdom and past precedent in the matter.  The “plain language” argument is horribly misplaced here.  The near quarter-century of contrary interpretation (without much controversy, either) is one fact that, at the very least, should destroy any notion that the language is “unambiguous.”  More troublesome, though, is that in decreeing a “plain meaning” for the statute, Justice Gildea herself rewrites the statute.  The statute reads: “put to reasonable use.”  The City, following conventional wisdom and precedent, applies the phrase as “put to a reasonable use.”  The challenger here insists that it should be “put to any reasonable use.”  That’s the whole debate – which modifier should be plugged in between “to” and “reasonable” to apply the statute to some facts?  You can, and Justice Gildea does, make a compelling contextual argument that “put to any reasonable use” is the right answer, but to insist that your conclusion is the “plain meaning of the statute” in this situation is just wrong.  If this is “strict constructionism,” then strict constructionism has no meaning.  We have settled methods for interpreting statutes, and they should be used when there is ambiguity, instead of doing partial analysis and then propping that up by declaring “plain meaning.”

So this case now goes back to Minnetonka for review under the variance standards as declared by the Court.  My question at the outset, and especially now, is: why did this get here?  Why is this application (to expand a non-conforming garage) going through variance?  As the Court made clear in the first half of its opinion, cities have the power to allow the expansion of nonconforming uses.  Moreover, cities can use any critieria they like in deciding whether to approve such an expansion – the sole requirement is to pass an ordinance allowing expansion, and describing how such permission can be obtained.  Minnetonka chose to use its variance procedure to consider these requests.  However, there is absolutely no reason that this must be tied to a variance procedure; to me, using variance considerations here make no sense.    The property is already nonconforming, thus is already at variance with the terms of the zoning code.  So from what, exactly, is the expansion request varying?  Under this Krummenacher decision, variance is now just an escape hatch used to avoid regulatory taking – which is exactly what nonconforming use doctrine is in the first place. 

My thought is that Minnetonka can moot this case, or at least make its life much easier at the re-consideration, by amending its ordinance to provide for a separate procedure to consider expansion of a nonconforming use or building.


2 Responses to “Variance Law Clarified By Supreme Court”

  1. Joe Says:


    Could you expand, in “simpler” terms, this idea: “Under this Krummenacher decision, variance is now just an escape hatch used to avoid regulatory taking – which is exactly what nonconforming use doctrine is in the first place.”

    I’m trying to understand this case as I’ve found out that, due to this ruling, a two-car garage is looking highly unlikely for me.


    • Trevor Oliver Says:

      I’ll try, anyway. Before Krummenacher, a city could use variances to approve projects that didn’t quite meet zoning standards but made sense for the owner and neighborhood. It really did not matter what you were currently able to do with your property, so long as your proposal was reasonable and the conflict with zoning wasn’t really your fault. So – let’s say you bought a property with a house and a one-car garage 10 years ago and everything complied with zoning, but 5 years ago the City changed the setbacks so that the line is right up against your garage. Now you want to build a 2-car garage, but can only do that by going over the new setback line. Under the old analysis, you had a decent shot at getting a variance if your neighbors were OK with it: your proposal for a 2-car garage is reasonable for a residential neighborhood, the conflict with zoning wasn’t your fault, and “character of the surrounding area” is another way of saying “are the neighbors mad?”

      The difference with Krummenacher is now we’re required to care a LOT about what you’re currently doing with the property. The city now has to find that you can’t put your property to ANY reasonable use under the zoning code before getting any further with the variance request. I called it an “escape hatch” because now the only way for a city to even think about approving a variance now is to first openly admit that the City has taken your property through its zoning regulations. If nothing changes, the City owes you quite a bit of money as compensation for that taking. If the City grants you a variance, though, they escape that possible liability because now you’re able to put your property to valuable use. Trouble is, there are not many scenarios where a property’s value will be totally zeroed out (and we’re talking about zeroed out, not just a decrease) by a zoning ordinance.

      In short, if you can use your property as is (which is probably the case if it’s your house and you’re thinking of an expansion), you’re not getting a variance. This year, anyway – odds are good that the Legislature will “fix” this in the next session and restore variances back to what most practitioners thought they were.

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