"Good fences make good neighbors" remains the classic American land-use dictum, although poet Robert Frost's intent was to advance the opposite view -- that neighbors don't really need walls to separate them because more flexible solutions are possible.
Lorie Gildea, Minnesota's chief justice, seemed to be of a similar mind last June. She and the state Supreme Court overturned lower-court rulings and took a hard line against zoning variances, making them almost impossible to get. Yet, in the same ruling, Gildea invited the Legislature to revisit the issue with an eye toward giving cities and towns more leeway in making exceptions to their zoning codes. She went so far as to suggest a New Hampshire case (Simplex vs. Newington) that lawmakers might draw upon to add flexibility to Minnesota law.
Until then, the impact of Gildea's ruling has been to pretty much shut down the variance business at city halls across the state. People wanting to build decks that protrude a few extra feet toward a neighbor's yard can forget it, at least for now. A business wanting a sign slightly larger than the law allows is out of luck for the time being.
The court's decision arose from the desire of a suburban Twin Cities woman, JoAnne Liebeler, to remodel an old garage by adding studio space above. Her neighbor, Beat Krummenacher, objected. Not only would a taller garage block his views, he argued, but the existing structure was technically "nonconforming" and, therefore, could not legally be expanded. (Built in the 1940s, years before Minnetonka's zoning code took effect, the garage lacked the proper setback to conform to existing law.)
Still, Minnetonka gave Liebeler a variance to allow her addition, and the courts upheld it, applying a standard that had been used since 1989: Without the variance, Liebeler would suffer "undue hardship" by being unable to use her garage in a "reasonable manner."
But Gildea said the lower courts should have applied a stricter standard. The real legal meaning of "undue hardship" is that without a variance, Liebeler's garage would not have any reasonable use, she said. That's a threshold she obviously couldn't reach, because without a second floor, the garage could still serve its original purpose: storing cars.
Weeks after the ruling, the League of Minnesota Cities posted an advisory that, in effect, stopped cities from issuing variances until the Legislature acts. Minneapolis' planning director, Barbara Sporlein, said the ruling is awkward for cities but also has pushed them to reexamine zoning procedures. Perhaps the answer is to move away from variances toward conditional-use agreements, she said, and toward more form-based zoning, in which design and community context become more important than defining a property's specific use for residential, commercial or other purposes.
Tom Grundhoefer, the League of Cities' general counsel, said he expects a legislative remedy to the impasse next year, probably in the form of more flexibility, although risks always accompany a legislature's digging into municipal procedure.
Take, for example, the infamous Kelo case. In 2005, the U.S. Supreme Court sided with the city of New London, Conn., which wanted to use eminent domain for an economic development project. In response, outraged property rights advocates convinced state legislatures across the country (including Minnesota's) to severely restrict cities' authority to condemn property. The impact has been to discourage the revival of older cities while pushing development to the periphery, adding to the cost of infrastructure and to the consumption of energy.
Our hope is that the Legislature will repair Minnesota's variance law in a way that adds flexibility for cities and towns while striking a fair balance between the rights of property owners and the desire of communities to rebuild and revitalize themselves.