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.